Torgyik v. GMPH One Incorporated

Filing 99

ORDER that Defendant's 88 Renewed Motion for Judgment as a Matter of Law is DENIED. ORDERED that Defendant's 89 Motion for a New Trial is DENIED.ORDERED that Plaintiff's 85 Motion for Final Judgment is GRANTED. The Clerk of Court shall enter judgment in favor of Plaintiff and against Defendant on Plaintiff' s ADEA claim in the amount of $44,109.30 in back pay and $2,898.54 in prejudgment interest for a total judgment amount of $47,007.84. The Co urt further awards Plaintiff post-judgment interest on all applicable amounts in accordance with 28 U.S.C. § 1961 from the date this judgment is entered until paid at the rate of 2.44% per annum. ORDERED that Plaintiff is awarded $ 23,503.92 in liquidated damages and $3,287.92 in court costs. Plaintiff's Motion for Attorneys' 83 Fees is GRANTED. Plaintiff is entitled to attorney fees in the amount of $31,780.00. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly. Signed by Judge Diane J Humetewa on 3/31/2019. (See Order for details.) (LFIG)

1

WO

2

NOT FOR PUBLICATION

3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Sandor Torgyik,
Plaintiff,

10
11

ORDER

v.

12

No. CV-16-04431-PHX-DJH

GMPH One Incorporated,

13

Defendant.

14
15

Pending before the Court are the following Motions: Plaintiff’s Motion for Findings

16

and Conclusions and Entry of Final Judgment (Doc. 85) and Defendant’s Response

17

(Doc. 91); Defendant’s Renewed Judgment as a Matter of Law (Doc. 88), Plaintiff’s

18

Response (Doc. 95), and Defendant’s Reply (Doc. 97); Defendant’s Motion for New Trial

19

(Doc. 89), Plaintiff’s Response (Doc. 96), and Defendant’s Reply (Doc. 98); and Plaintiff’s

20

Application for Attorney’s Fees (Doc. 83), Defendant’s Response (Doc. 90), and Plaintiff’s

21

Reply (Doc. 93). The Court now issues its Order.

22

The Court will first address Defendant’s Renewed Judgment Motion and his Motion

23

for a New Trial as a determination of those motions may obviate the need to address all

24

other motions.

25

I.

Background

26

Sandor Torgyik (“Plaintiff”) filed a complaint alleging that his employer, GMPH

27

One, Inc., doing business as “Southwest Collision” (“Defendant”), fired him in violation

28

1

of the Age Discrimination in Employment Act (“ADEA”),1 the Arizona Civil Rights Act

2

(“ACRA”),2 and the Arizona Employment Protection Act.3 (Doc. 1). Plaintiff alleged that

3

George Galowicz, (“Galowicz”) is an officer and director of Defendant. Galowicz hired

4

Plaintiff as a body technician on October 31, 2011. Plaintiff was sixty-years old at the time

5

of his hiring. In September 2015, Galowicz asked Plaintiff how much longer he intended

6

to work. (Id. at 2). Plaintiff replied, “a couple more years.” (Id.) Thereafter, Plaintiff

7

alleged that his work assignments became more limited and that Galowicz tried to convince

8

Plaintiff to take a job at another body shop. (Id. at 3). Plaintiff stated that he visited the

9

other body shop and determined that it was not suitable. (Id.) On December 2, 2015,

10

Plaintiff was fired from Southwest Collision by Kevin “KJ” Nellis (“KJ”). (Id.) Plaintiff

11

alleged that Galowicz instructed KJ to fire him. (Id.)

12

The case proceeded to jury trial on August 7, 2018. Plaintiff testified that he was

13

paid an hourly rate of $18.00 measured by “flag hours.” (Certified Trial Tr., Aug. 7, 2018

14

at Doc. 87 at 20 (“Tr. 8/7/18”)). “[F]lag hours” are the number of hours that an insurance

15

company affixes to repair a particular car. (Id.) Regardless of the actual hours worked on

16

that car, a body man would be paid the assigned flag hours. (Id.) Plaintiff testified that in

17

May, June, July and August of 2015, he had over 100 hours of work. (Id. at 26); (see also

18

Def.’s Tr. Ex. 132 (chart of Plaintiff’s hours worked)). Then, in September, Plaintiff

19

testified that his work-hour production went down because he was not being assigned the

20

same number of cars as other shop technicians. (Id. at 26-27).

21

Plaintiff testified that KJ, the general manager, was responsible for work

22

assignments. (Id. at 27). After he was not getting work in September, Plaintiff asked KJ

23

“what’s going on [] [a]re you guys going to force me out or what[?]” (Id.) Plaintiff went

24

to Galowicz to see if he could get more work to which he replied, “[g]o talk to KJ.” (Id.)

25

At some point in September, Plaintiff was told that Galowicz wanted to speak with him.

26
1

29 U.S.C. § 623(a).

2

A.R.S. §§ 41-1416.

3

A.R.S. § 23-1501.

27
28

-2-

1

When Plaintiff met with Galowicz, he was asked “[h]ow long [are] you going to work

2

here?” Plaintiff responded, “I figure about maybe a couple of more years and then I’m

3

going to retire. I’m going to be 70, so I’m going to retire.” (Id. at 29). Plaintiff testified

4

that Galowicz said, “I have to let you go, Alex, because I need a younger body man so I

5

can send them to school, because if I send you to school, [I’m] just wasting my money

6

because you’re going to be here with us for another two years, and you cannot produce like

7

a younger body man.” (Id. at 30). Galowicz testified that it was possible that he asked

8

Plaintiff when he intended to retire because “[w]e always talk[ed] about retirement.”

9

(Uncertified Trial Tr., Aug. 8, 2018 at 185 (“UTr.”)).4 Plaintiff testified that, thereafter, he

10

continued to work as usual. (Tr. 8/7/18 at 35-37).

11

Galowicz testified that Plaintiff’s work had diminished in quality, that he refused to

12

attend certification training, failed a training class, and that his work production had

13

slowed. (UTr. 8/8/18). Galowicz testified that the shop’s commercial fleet accounts, on

14

which Plaintiff primarily worked, had also diminished. (Id.) Galowicz testified that all of

15

these reasons were the basis for his searching for other part-time work in other body shops

16

for Plaintiff. (Id.) Galowicz denied telling Plaintiff that he would be fired because he

17

could not be sent to training school. (Id.)

18

Plaintiff testified that in November, Galowicz asked to meet with him again and

19

said, “I’m going to try to find a job for you.” (Tr. 8/7/18 at 31:21). Plaintiff testified that

20

he did not want another job. (Id. at 31:22-23). Plaintiff testified that on November 24, KJ

21

told him that “George wants you to go to the American Body Shop and take the job over

22

there. They have a lot of work.” (Id. at 32:3-5). Plaintiff visited the shop and based on his

23

observations of it and conversations with the owner, he did not find it acceptable. (Id. at

24

34-36). The next day, Plaintiff met with Galowicz and said ‘[t]hey have no work over

25

there. The body shop is close - - is dark, not even the lights on it[,] they have nothing there.

26

And the place is dirty and looked like a dump.” (Id. at 36:11-14). Plaintiff also testified

27

that around this time, Galowicz hired a younger body man, requiring him to move to a

28

4

The parties only requested certified transcripts of certain portions of the trial. Citations
to “UTr.” are to uncertified court transcripts from the particular day cited.
-3-

1

smaller work area. (Id. at 37).

2

Plaintiff testified that on the morning of December 2, he told KJ “If you guys don’t

3

want me over here because of my age, let me off or fire me,” to which KJ responded, “I

4

got to talk to George about it.” (Id. at 49). After lunch, KJ asked to meet Plaintiff in

5

Galowicz’s office, and when he arrived, KJ said, “I have to let you go, and here is the paper

6

to sign[.]” (Id. at 50). Plaintiff testified that when he looked at the paper it noted “George

7

kept me for three months to [refinance] home.” (Pl.’s. Tr. Ex. 5). Plaintiff stated that the

8

two shook hands and KJ gave him a hug. (Id.)

9

Galowicz testified that he was not in the shop at the time Plaintiff was fired. (UTr.

10

8/8/18 at 140).

11

conversation” but later KJ clarified that “it was actually discharge.” (Id.) Plaintiff’s

12

counsel asked KJ to “tell the jury [] the main reason that you decided to terminate Alex”

13

and he said, “he did not produce the quality of work that I was required to sell[.] . . . we

14

were looking to get him a new home for the previous three months [and] Southwest

15

Collision did not have the accounts anymore for [Plaintiff] to work on.” (Id. at 7). KJ

16

further explained that “he was let go this exact day because he was very angry he was very

17

profane . . . so we parted ways that day[.]” (Id. at 18-19). KJ further testified about a

18

termination notice that he filled out explaining the termination. (Id. at 14-15).

He stated that KJ informed him that “Alex quit during [a] heated

19

Plaintiff testified that after he was fired from Southwest Collision on December 2,

20

he attempted to find work by calling body shops. (Tr. 8/7/18 at 53). Plaintiff stated he had

21

no luck as it was before Christmas and no one was hiring. (Id.) He eventually found a job

22

in January at Van Chevrolet and he started work there as a body man on January 12, 2016.

23

(Id. at 54). Plaintiff made $17.00 an hour there. (Id. at 55). Plaintiff stated that he worked

24

at Van Chevrolet for three-months, but he had to give it up due to health issues related to

25

his knees. (Id.) Plaintiff explained that after he quit working at Van Chevrolet, he sought

26

work for four or five months but ultimately determined he was not able to work because

27

he was scheduled to have a second knee surgery on December 21, 2016. (Id. at 54).

28

Plaintiff stated that between December 21, through March of 2017, he did not work.

-4-

1

Plaintiff returned to work on February 7, 2018, as an auto body technician making $18.00

2

a flag hour. (Id. at 55).

3

On August 10, 2018, the jury returned a verdict in Plaintiff’s favor finding that he

4

had proven, by a preponderance of the evidence, that but for his age, he would not have

5

been terminated. (Doc. 74). The jury awarded Plaintiff $44,109.30 in back pay. (Id.) The

6

jury further found that Defendant’s conduct in terminating Plaintiff was willful. (Id.)

7

II.

Post-Trial Motions

8

1.

9

After Plaintiff rested his case, Defendant moved for judgment as a matter of law “to

10

terminate Plaintiff’s damages on the date that he stopped working for his subsequent

11

employer.” (Doc. 88 at 1). Defendant’s Rule 50(a) motion was supported by a memoranda

12

arguing three points: (1) Plaintiff presented no testimony or other evidence about what he

13

would earn over any period had he not been terminated and that there is no testimony that

14

he would have continued to earn a commensurate amount; (2) he is not entitled to front pay

15

because he obtained new employment on January 11, 2016 and he left five months later

16

due to a knee injury; and (3) if the jury finds that he is entitled to back pay, “that terminated

17

with his employment at Van Chevrolet beginning on January 11, 2016.” (Doc. 64). As to

18

the third point, citing jury instruction 11.13, Defendant argues that Plaintiff’s “award of

19

back pay should be reduced by the amount of damage that [he] actually avoided.” (Id.) In

20

the Rule 50(b) motion, Defendant seeks to limit Plaintiff’s damages “to the period

21

terminating on April 28, 2016” because “[a] reasonable jury could not have awarded more

22

than [$7,532.93]” for damages. (Doc. 88 at 1). Plaintiff disagrees stating that his testimony

23

showed that he was able to continue working until December 21, 2016. (Doc. 95 at 4).

24

Defendant’s Renewed Motion as a Matter of Law (Doc. 88)

a.

Legal Standards

25

When the Court denies a party’s Rule 50(a) motion, “the court is considered to have

26

submitted the action to the jury subject to the court’s later deciding the legal questions

27

raised by the motion.” Fed.R.Civ.P. 50(b). Post trial, a party is therefore permitted to

28

renew a motion for a judgment as a matter of law within the specified time. “In ruling on

-5-

1

the renewed motion, the court may: (a) allow judgment on the verdict[;] (2) order a new

2

trial; or (3) direct the entry of judgment as a matter of law.” Id. A court must uphold the

3

jury’s award if there was any legally sufficient basis to support it. Experience Hendrix

4

L.L.C. v. Hendrixlicensing.com, 762 F.3d 829, 842 (9th Cir. 2014) (citing Costa v. Desert

5

Palace Inc., 299 F.3d 838, 859 (9th Cir. 2002)). In determining whether there is a legally

6

sufficient basis to support a jury’s award of damages on a Rule 50(b) motion, a court must

7

consider all of the record evidence and draw all inferences in favor of the nonmoving party.

8

Id. In addition, the court may not make any credibility determinations or reweigh the

9

evidence. Id.

10

Regarding an award of damages, a plaintiff has the burden of proving the existence

11

and amount of damages by a preponderance of the evidence, while also taking reasonable

12

measures to minimize his damages. See Cassino v. Reichhold Chems., Inc., 817 F.2d 1338

13

(9th Cir. 1987), cert. denied, 484 U.S. 1047 (1988). A plaintiff “forfeits his right to

14

backpay if he refuses a job substantially equivalent to the one he was denied.” Ford Motor

15

Co. v. E.E.O.C., 458 U.S. 219, 232 (1982); see also Caudle v. Bristow Optical Co., Inc.,

16

224 F.3d 1014, 1020 (9th Cir. 2002) (“[P]laintiff seeking back pay [has] a duty to mitigate

17

damages by seeking alternative employment with ‘reasonable diligence.’”). Therefore, a

18

plaintiff must attempt to mitigate damages by exercising reasonable care and diligence in

19

seeking reemployment. Cassino, 817 F.2d at 134. However, the defendant bears the

20

burden of proving that a plaintiff failed to mitigate his damages including that “there were

21

suitable positions available and that the plaintiff failed to use reasonable care in seeking

22

them. Id. (citing Jackson v. Shell Oil Co., 702 F.2d 197, 202 (9th Cir. 1983)).

23

b.

Discussion

24

At close of trial, Defendant moved for judgment as a matter of law pursuant to Rule

25

50(a), arguing that “there has been no evidence provided to the jury on which they could

26

base . . . any damage calculation.” (UTR 8/9/18 at 3). The Court found that there was

27

sufficient record evidence to support a jury determination of lost wages from December 2,

28

2015, through January 11, 2017, based on the wage reports in evidence. (Id.) The Court

-6-

1

noted, however, that it would be up to the jury to determine if other damages were

2

warranted, including damages that may have accrued after he left Van Chevrolet and his

3

knee surgery. The Court denied Defendant’s Rule 50(a) motion.

4
5
6
7

As to an award of damages and mitigation the jury was instructed:
1. Award: Back pay includes any lost pay the plaintiff would have received from
the date the defendant discharged the plaintiff to the date of trial. The plaintiff
has the burden of proving both the existence and the amount of back pay by a
preponderance of the evidence.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2. Mitigation of Back Pay Award: The plaintiff has a duty to undertake reasonable
measures to minimize his damages and the defendant is not required to
compensate the plaintiff for avoidable damage. Thus, your award of back pay
should be reduced by the amount of damages that the plaintiff actually avoided,
or could have avoided, if he had made reasonable efforts. The defendant has the
burden of proving by a preponderance of the evidence that a reduction should be
made and the amount by which the award should be reduced.
Therefore,
a. You must deduct any wages or other earnings that the defendant proved
that the plaintiff received from other employment for the date the
defendant discharged the plaintiff to the date of trial.
b. If the defendant proves by a preponderance of the evidence either: (i) that
the plaintiff unjustifiably failed to take a new job of like kind, status, and
pay which was available to plaintiff, or (ii) that the plaintiff failed to make
reasonable efforts to find such new job;
You must subtract from the back-pay award the amount of money you
find that the plaintiff could have earned from the time the plaintiff could
have obtained such new job or should have obtained from such new job,
had he made reasonable efforts to find such new job to the date of trial.
(Doc. 86 at 11-12).
Defendant argued that the evidence showed that “[Plaintiff] was terminated on
December 2 [and] he obtained new work on January 11. And that work ended in April as
a result of doctor’s orders relative to his knees or, because of conditions of his knees.” (Id.)
Therefore, Defendant argued that Plaintiff would not be entitled to damages beyond April
because he was unable to work for reasons beyond Defendant’s control and because he
voluntarily ended his job at Van Chevrolet. (Id.) Moreover, Defendant argued that there
-7-

1

is no basis for a wage loss claim because Plaintiff was making the same amount of money

2

at Van Chevrolet. Finally, Defendant argued that there was no record evidence of

3

Plaintiff’s claimed losses between December 2, and January 11, and because his wages

4

were based on “flag hours” worked, there would be no way that a jury could calculate his

5

losses.

6

Plaintiff first conceded that front pay is not an issue, but as to back pay he argued

7

that there was sufficient testimony and evidence in the record, including wage reports

8

showing his amount of quarterly earnings for one year (Pl.’s. Tr. Ex. 16) and testimony

9

about his rate of pay and “flag hours” worked. Therefore, Plaintiff argued that there was

10

enough information in the record to allow the jury to conclude what he was making on

11

average for several time periods during his last year of employment with Southwest

12

Collision, including several months leading up to his termination. The Court agrees.

13

Moreover, Plaintiff produced evidence that he actually sought and found work at

14

Van Chevrolet for $17.00 an hour. By its verdict, the jury reduced Plaintiff’s damages by

15

the amount he earned from January 12 through April 28, 2016 at Van Chevrolet. Defendant

16

failed to show by a preponderance of the evidence that Plaintiff’s award should have been

17

further reduced because he unjustifiably failed to take a new job, or that he failed to make

18

reasonable efforts to do so. To the contrary, Plaintiff testified that although he ceased

19

looking for work due to knee surgery, at time of trial, he was actually working.

20

Accordingly, Defendant’s Renewed Motion for Judgment as a Matter of Law (Doc. 88) is

21

denied.

22

2.

23

Defendant asserts that the “same actor inference” instruction should have been given

24

to the jury and that the Court’s failure to do so denied it a fair trial. (Doc. 89 at 1-2).

25

Plaintiff responds that the Court properly refused to give the instruction because Defendant

26

never presented evidence “that the ‘same actor’ was responsible for Mr. Torgyik’s hiring

27

and his firing.” (Doc. 96 at 2). In retort, Defendant, citing out of circuit cases, argues that

28

it is entitled to the same-actor inference instruction “regardless of how minimal or weak

Defendant’s Motion for a New Trial – “Same Actor Inference” (Doc. 89)

-8-

1

that evidence is.” (Doc. 89 at 1). Plaintiff also states that Defendant waived his objection

2

because it failed to object to the jury instructions and it failed to request a special verdict.

3

(Doc. 96 at 4). Defendant argues that it preserved the issue by requesting the instruction

4

in the first instance. (Doc. 98 at 5). The Court will address each argument in turn.

5

a.

Legal Standards

6

“Where the same actor is responsible for both the hiring and the firing of a

7

discrimination plaintiff, and both actions occur within a short period of time, a strong

8

inference arises that there was no discriminatory motive.” Schechner v. KPIX-TV, 686

9

F.3d 1018, 1026 (9th Cir. 2012) (quoting Bradley v. Harcourt, Brace & Co., 104 F.3d 267,

10

271 (9th Cir. 1996)). There is no bright-line on what constitutes “a short period of time.”

11

An examination of cases shows that the 9th Circuit has not hesitated to uphold the inference

12

where the actions were taken roughly a year apart. E.g., Coleman v. Quaker Oats Co., 232

13

F.3d 1271, 1286 (9th Cir. 2000) (taking the inference into account where the “decisions to

14

hire and then to terminate were about a year apart”); But c.f. Schechner, 686 F.3d at 1026

15

(the inference “also may arise when the favorable action and termination are as much as a

16

few years apart”) (citing Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1097 (9th Cir.

17

2005)). Notably, the “inference [also] applies to favorable employment actions other than

18

hiring, such as promotion.” Schechner, 686 F.3d at 1026. In Coghlan, the 9th Circuit held

19

that the inference was justified even though three years had elapsed between hiring and the

20

earliest discriminatory decision because there were other subsequent favorable actions,

21

after hiring, which occurred roughly one year before the first discriminatory events. See

22

Coghlan, 413 F.3d at 1097. And, Bradley v. Harcourt, Brace & Co., therefore, limited its

23

holding to actions occurring “within a short period of time.” Bradley v. Harcourt, Brace

24

& Co., 104 F.3d 267, 270-71 (9th Cir. 1996) (citing Lowe v. J.B. Hunt Transp., Inc., 963

25

F.2d 173 (8th Cir. 1992) (implying the inference where actions occurred less than two years

26

apart)).

27
28

b.

Discussion

At the outset, the Court notes that neither party addresses the “short period of time”

-9-

1

element of the instruction. Here, Plaintiff was hired on October 31, 2011, and fired on

2

December 2, 2015. Thus, over four-years had elapsed between his hiring and firing.

3

Unlike Coughlin, there was no evidence that Plaintiff received favorable treatment or

4

promotions in the interim period. Thus, the Court finds that the four-year time lapse

5

between Plaintiff’s hiring and firing, alone, justifies not giving the same actor inference

6

instruction. Nonetheless, the Court will also address the factual record.5

7

The testimony and evidence showed that Plaintiff started working for Southwest

8

Collision as a body technician on October 31, 2011. The parties agreed that Galowicz hired

9

Plaintiff. (See Tr. of Final Pretrial Conference on Aug. 2, 2018) at Doc. 59 at 6 (reflecting

10

Plaintiff’s counsel statement that “[w]e’re not disputing that Mr. Galowicz is the one who

11

hired Mr. Torgyik”). Plaintiff was fired on December 2, 2015. At the pretrial hearing, the

12

parties were less certain about what the evidence would show as to who actually fired

13

Plaintiff. (Id.) They ultimately agreed that the Court would need to determine whether the

14

“same actor inference” jury instruction was warranted based on the trial evidence. (Id.)

15

Three witnesses testified about who fired Plaintiff, Plaintiff Torgyik, Galowicz, and

16

KJ Nellis. Plaintiff’s counsel asked KJ to “tell the jury [] the main reason that you decided

17

to terminate Alex,” and KJ responded that “he did not produce the quality of work that I

18

was required to sell.” (UTr. 8/8/18 at 17). KJ further explained that “[H]e was let go this

19

exact day because he was very angry he was very profane . . . so we parted ways that day[.]”

20

(Id at 19). KJ further testified about a termination notice that he filled out explaining the

21

termination. Galowicz testified that he was not in the shop at the time Plaintiff was fired.

22

(Id. at 138). He stated that KJ informed him that “Alex quit during the heated conversation”

23

but later KJ clarified that “it was actually discharge.” (Id. at 140). There are no facts in

24

the record to show that Galowicz was present when Plaintiff was fired.

25

Defendant did not produce evidence to persuade the Court that Galowicz fired

26
5

27
28

The parties, in part, base their argument on what would be or was argued in Plaintiff’s
closing argument. However, the jury was instructed that the lawyers opening and closing
arguments are not evidence. Thus, the Court has likewise not considered them. See 9th
Cir. Civ Jury Instr. 1.10.

- 10 -

1

Plaintiff. Rather, Defendant went to great lengths to show that it was KJ Nellis who fired

2

Plaintiff. For instance, Defendant’s counsel asked Galowicz “[d]id KJ have authority to

3

fire employees” and he responded “yes.” (Id. at 207). Counsel further asked “was

4

[Plaintiff] the only employee that KJ ever fired” and Galowicz replied “no.” (Id.). Finally,

5

counsel asked Galowicz “[d]id KJ contact you on December 2 before he fired [Plaintiff] to

6

seek your permission” and he replied “no.” (Id.) These questions along with Defendant’s

7

stipulated description of the case that Plaintiff was fired for insubordination infers that KJ

8

Nellis fired Plaintiff. (Doc. 40 at 4).6

9

Moreover, at the close of trial, the parties agreed that the following fact stipulations

10

be read to the Jury: “1) George Galowicz hired Mr. Torgyik, and 2) Kevin KJ Nellis

11

informed Mr. Torgyik that he was terminated on December 2, 2015.” (Doc. 86 at 18). The

12

parties also agreed that the jury be instructed that “[p]laintiff’s employment with Defendant

13

was ‘at will’. This means that Defendant was free to discharge him for any reason or for

14

no reason at all as long as it did not discharge him for an unlawful reason.” (Id. at 14).

15

Thus, the combined record supports that the Defendant was not entitled to the “same actor”

16

inference.

17

Obviously, the jury ultimately determined that Defendant discharged Plaintiff

18

because of his age, and presumably that Galowicz’s treatment of Plaintiff was the impetus

19

for his firing. Yet, based on the evidence and testimony, a reasonable juror could have

20

concluded that KJ Nellis fired Plaintiff for insubordination. The testimony about Plaintiff’s

21

use of profanity, coupled with the stipulated jury instructions that Plaintiff was an “at will”

22

employee, and the stipulated fact that “Kevin KJ Nellis informed Mr. Torgyik that he was

23

terminated on December 2, 2015” could have convinced a juror that KJ Nellis, not

24

Galowicz, fired Plaintiff.

25

As to whether Defendant waived his objection to the “same actor inference”

26
27
28

6

In the preliminary instructions, the parties agreed that the following brief summary of
their positions be read to the jury: “Plaintiff, . . . alleges that [Defendant’[ terminated him
because of his age. [Defendant] denies that it terminated [Plaintiff] because of his age, but
rather it terminated him for insubordination.” (Doc. 40 at 4).

- 11 -

1

instruction, the Court finds that he did not. First, as noted, in pretrial, Defendant did submit

2

the instruction, but he agreed that the Court would have to await a full development of the

3

evidence and testimony to determine if it should be given. At close of trial, the Court

4

informed the parties that the record did not support giving the instruction to which

5

Defendant’s counsel replied, “there is evidence from which the jury could infer that if Mr.

6

Torgyik was in fact terminated because of age it was done so at the behest of Mr.

7

Galowicz.” And, essentially, Plaintiff’s counsel agreed. But the Court explained that the

8

same actor inference instruction is an affirmative defense and based on the record, it is not

9

warranted. Therefore, Defendant preserved and did not waive his objection, but the Court

10

determined that the instruction was not warranted as a matter of law. Based on the

11

foregoing, Defendant’s Motion for a New Trial (Doc. 89) is denied.

12
13

Plaintiff’s Motion for Findings and Conclusions & Entry of Final
Judgment (Doc. 85)

14

The Court need not make findings of fact regarding the ACRA claim, and the parties

15

both agree. First, during trial, both parties agreed that the elements for the ACRA claim

16

were identical to the federal age discrimination claim and thus, only one instruction needed

17

to be given. (UTr. 8/10/18 at 234-35). See Matos v. City of Phoenix, 859 P.2d 748, 754

18

(Ariz. Ct. App. 1993) (“[c]ases analyzing the Age Discrimination in Employment Act of

19

1967 . . . are relevant in interpreting the comparable ACRA provision on age

20

discrimination.”) (citations omitted). Thus, given the jury verdict on Plaintiff’s ADEA

21

claim, the Court finds that Plaintiff likewise prevailed on his ACRA claim. Therefore, the

22

Court will enter final judgment for Plaintiff on that claim. Because Plaintiff does not seek

23

additional relief under the ACRA, the Court need not determine such relief.

24

3.

a.

Liquidated Damages

25

Plaintiff next moves for liquidated damages based on the jury’s finding that

26

Defendant acted willfully in violating the ADEA. (Doc. 85 at 3). The ADEA authorizes

27

courts “to grant such legal or equitable relief as may be appropriate to effectuate the

28

purposes” of the act, which includes awarding “liquidated damages.” 29 U.S.C. § 616(b).

- 12 -

1

An award of both liquidated damages and prejudgment interest are appropriate under the

2

ADEA because “liquidated damages and prejudgment interest serve different functions in

3

making ADEA plaintiffs whole.” Criswell v. Western Airlines, Inc., 709 F.2d 544, 556

4

(9th Cir.1983), aff’d, 472 U.S. 400 (1985).

5

substitution for punitive damages and [are] intended to deter intentional violations of the

6

ADEA.” Kelly v. American Standard, 640 F.2d 974, 979 (9th Cir. 1981).

Moreover, liquidated damages are “a

7

Plaintiff requests an award of liquidated damages in the full amount awarded to him

8

by the jury plus prejudgment interest, for a total of $47,007.84. Defendant did not respond

9

to Plaintiff’s request for liquidated damages, and thus did not dispute Plaintiff’s request.

10

Here, the jury found that the Defendant acted willfully in terminating Plaintiff. The Court

11

finds that the jury’s determination of willfulness is supported by the record. Among other

12

evidence, Galowicz testified that at the time Plaintiff was fired, Southwest Collision had

13

no policy on age discrimination, there was ample testimony about Plaintiff’s age as it

14

related to his capacity to be trained, his longevity with the Defendant and testimony of

15

relocating Plaintiff to another body repair shop. In addition, Defendant hired a more

16

youthful body man which resulted in Plaintiff’s work space reduction. See Cassino v.

17

Reichold Chems., Inc. 817 F.2d 1338, 1348 (9th Cir. 1987) cert. denied, 484 U.S. 1047,

18

108 S.Ct. 785 (1988) (“[w]illfulness may be shown by circumstantial evidence including

19

statistical evidence and discriminatory statements.”). The purpose behind an award of

20

liquidated damages is to deter future discriminatory conduct. The Court finds that based

21

on the jury finding of willful conduct, an award of liquidated damages is appropriate. See

22

29 U.S.C. § 616(b). The Court finds, in its discretion, that an award of $47,007.84 is

23

sufficient to punish Defendant for the ADEA violation and deter Defendant from future

24

violations.

25
26

b.

Pre-Judgment Interest

The only remaining issue to resolve in this motion is whether Plaintiff is entitled to

27

pre-judgment interest.

28

appropriate.” Domingo v. New England Fish Co., 727 F.2d 1429, 1446 (9th Cir. 1984).

“An award of prejudgment interest on a back pay award is

- 13 -

1

Prejudgment interest is intended to compensate “the loss of use of this money during the

2

period payments [are] withheld from [ADEA plaintiffs].” Criswell, 709 F.2d at 556–57.

3

In calculating prejudgment interest, the Court will use the weekly average 1-year constant

4

maturity Treasury yield. Blankenship v. Liberty Life Assur. Co. of Boston, 486 F.3d 620,

5

628 (9th Cir. 2007) (“Generally, the interest rate prescribed for post judgment interest

6

under 28 U.S.C. § 1961 is appropriate for fixing the rate of prejudgment interest unless the

7

trial judge finds, on substantial evidence, that the equities of that particular case require a

8

different rate.’” (quoting Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1163-

9

64 (9th Cir. 2001)).

10

At the date judgment was entered on August 10, 2018, the weekly average Treasury

11

yield for calculating interest was 2.44%. The period between the date of termination and

12

the date of judgment encompassed 983 days. Plaintiff is seeking prejudgment interest on

13

the jury award of $44,109.30, for a total amount of interest of $2,898.54. Defendant does

14

not contest the interest calculation but argues that Plaintiff is not entitled to prejudgment

15

interest because “his damages were not easily ascertainable but rather where [sic]

16

dependent upon the jury’s discretion.” (Doc. 91 at 2). However, Defendant cites to no

17

authority for its argument that “Torgyik is not entitled to prejudgment interest because the

18

amount of his damages was subject to jury’s discretion.” (Id. at 4). The Court, in its

19

discretion, will award prejudgment interest in the amount of $2,898.54. The Court will

20

also award Plaintiff court costs in this matter as set forth in his Motion, in the amount of

21

$3,287.92. Defendant did not object to this request.

22

4.

23

The final matter before the Court is Plaintiff’s Motion for Attorneys’ Fees

24

(Doc. 83). Plaintiff requests an award of attorneys’ fees in the amount of $31,780.00

25

pursuant to 29 U.S.C. § 626(b), A.R.S. § 41- 1481(J), Rule 54(d)(2) of the Federal Rules

26

of Civil Procedure, LRCiv 54.2, and the Clerk’s Judgment dated April 10, 2018. (Doc. 83).

27

Defendant does not object to the hourly rate or the number of hours billed in this case but

28

argues that the amount sought by Plaintiff is excessive in light of his “limited degree of

Plaintiff’s Application for Attorneys’ Fees (Doc. 83)

- 14 -

1
2

success at trial.” (Doc. 90).
a.

Legal Standards

3

Prevailing plaintiffs are entitled to an award of attorney fees and related non-taxable

4

expenses pursuant to the ADEA, which incorporates the attorney’s fees provision from the

5

Fair Labor Standards Act of 1938 (“FLSA”). See 29 U.S.C.§ 216(b) (“The court in such

6

action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a

7

reasonable attorney’s fee to be paid by the defendant, and costs of the action.”) (emphasis

8

added). An award of attorneys’ fees for a prevailing plaintiff is mandatory under the FLSA

9

provision. See Christiansburg Garment Co. v. EEOC, 434 U.S.412, 415 n.5 (1978) (FLSA

10

is one of the “statutes [that] make[s] fee awards mandatory for prevailing plaintiffs”);

11

Orozco v. Borenstein, 2013 WL 655119, at *2 (D. Ariz. Feb. 21, 2013) (“It is not only

12

appropriate to award fees to a successful plaintiff, it is mandatory.”) (emphasis added).

13

“In the federal system statutory fees are typically awarded by the court under the

14

lodestar approach.” Comm’r v. Banks, 543 U.S. 426, 438 (2005). “The ‘lodestar’ is

15

calculated by multiplying the number of hours the prevailing party reasonably expended

16

on the litigation by a reasonable hourly rate.” Morales v. City of San Rafael, 96 F.3d 359,

17

363 (9th Cir.1996). “After computing the ‘lodestar,’ the district court may then adjust the

18

figure upward or downward taking into consideration twelve ‘reasonableness’ factors: (1)

19

the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the

20

skill requisite to perform the legal service properly, (4) the preclusion of other employment

21

by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is

22

fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the

23

amount involved and the results obtained, (9) the experience, reputation, and ability of the

24

attorneys, (10) the “undesirability” of the case, (11) the nature and length of the

25

professional relationship with the client, and (12) awards in similar cases.” Evon v. Law

26

Offices of Sidney Mickell, 688 F.3d 1015, n.11 (9th Cir. 2012) (internal citations omitted).

27

Once civil rights litigation materially alters the legal relationship between the

28

parties, “the degree of the plaintiff’s overall success goes to the reasonableness” of a fee

- 15 -

1

award. Hensley v. Eckerhart, 461 U.S. 424 (1983). The Ninth Circuit has specifically

2

instructed that “courts should not reduce lodestars based on relief obtained simply because

3

the amount of damages recovered on a claim was less than the amount requested.”

4

Quesada v. Thomason, 850 F.2d 537, 539 (9th Cir. 1988). “Moreover, in City of Riverside,

5

the Supreme Court, in the context of civil rights statutes, expressly rejected the proposition

6

that fee awards must be in proportion to the amount of damages recovered.” Evon, 688

7

F.3d at 1033 (9th Cir. 2012); See City of Riverside, 477 U.S. at 574 (affirming fee award

8

of $245,456.25 when damages recovered were only $13,300).

9

b.

Discussion

10

Plaintiff argues that his request for $31,780.00 is a reasonable amount under the

11

lodestar approach, based on the amount of work expended in this case, the difficulty in

12

securing a positive jury verdict on an ADEA claim, and on the fact that the jury found for

13

Plaintiff. (Doc. 83). Defendant does not object to the hourly rate or the number of hours

14

billed in this case. Rather, Defendant argues that the overall fee request in unreasonable

15

based on the jury verdict. (Doc. 90).

16

First, under the ‘lodestar’ approach, the Court finds that the number of hours spent

17

on the case, multiplied by the hourly rate of counsel, is $31,780.00. The Court will next

18

consider the twelve reasonableness factors to determine whether the fee request is

19

reasonable. The Court need not consider all factors equally. See Evon, 688 F.3d at 1015.

20

The Court finds that both parties diligently litigated this case, which resulted in a jury trial.

21

Therefore, the time and labor required from counsel was substantial. Plaintiff concedes

22

that the legal questions were not particularly novel; however, he argues that the application

23

of the “but for” test in age discrimination cases makes the preparation and development of

24

the case difficult. The Court agrees. The Court finds that counsel performed the legal

25

service properly, using expertise in this area of the law. Moreover, the Court finds the

26

experience, reputation, and ability of counsel to weigh in favor of granting the Motion.

27

Attorney Carden states in his declaration that “there were other cases which presented

28

themselves while this case was being litigated, which counsel was precluded from

- 16 -

1

undertaking due to the time required on this matter.” (Doc. 83). Based on Carden’s

2

declaration, the Court finds that this case did preclude other employment, and that the work

3

on this case, particularly the jury trial, imposed limitations on Carden’s other cases. As to

4

the hourly rate, and whether the fee is fixed or contingent, Defendant states that it has no

5

objection to the rate charged and the Court finds the rate of $350 per hour to be reasonable.

6

(Doc. 90). As to the amount of recovery obtained, the jury awarded the full amount that

7

was requested by Plaintiff at trial. Plaintiff states that there are many reasons that this type

8

of a case is undesirable, including working on a case for years through jury trial with the

9

possibility of no recovery for the plaintiff and very little, if any fees paid. The attorney-

10

client relationship has spanned from the case filing to the jury verdict and continues post-

11

trial. Lastly, to show that his request is reasonable in light of other cases, Plaintiff cites to

12

numerous cases where attorney fee awards are in excess of the jury award to a plaintiff.

13

See, e.g., Avila v. L.A. Police Dep’t, 758 F.3d 1096, 1105 (9th Cir. 2014) (upholding award

14

of $579,000 in attorney fees to employee whose damages were only $50,000 in FLSA

15

retaliation case); Bonnette v. California Health & Welfare Agency,704 F.2d 1465, 1468 &

16

1473 (9th Cir. 1983) (upholding award of $100,000 in attorney fees for an FLSA recovery

17

of $18,455); See also Cuff v. Trans States Holdings, Inc., 768 F.3d 605, 610-11 (7th Cir.

18

2014) (upholding award of FMLA attorneys’ fees in the amount of $325,000 despite

19

plaintiff’s recovery of less than $50,000 in damages).

20

Defendants cite the Farrar case for its argument that the fee here is unreasonable

21

based on the jury verdict. However, the facts in Farrar are very different from this case.

22

See Farrar v. Hobby, 506 U.S. 103, 114 (1992) (“If ever there was a plaintiff who deserved

23

no attorney’s fees at all, that plaintiff is Joseph Farrar. He filed a lawsuit demanding 17

24

million dollars from six defendants. After 10 years of litigation and two trips to the Court

25

of Appeals, he got one dollar from one defendant.”). Defendants concede that the hourly

26

rate and the number of hours billed in this case are reasonable. (Doc. 90).

27

The Court finds that all twelve of the reasonableness factors weigh in favor of

28

awarding Plaintiff the full amount of attorneys’ fees sought in his Motion. Here, the

- 17 -

1

amount sought by Plaintiff for attorneys’ fees is less than the verdict amount awarded by

2

the jury. Moreover, upon review of Plaintiff’s motion and supporting documentation, the

3

Court finds Plaintiff’s fee request to be reasonable. Plaintiff has demonstrated that the rates

4

charged, the hours expended, and the costs incurred are reasonable for this case.

5

Considering all of the above, the Court will grant the motion and award an amount of

6

$31,780.00 in attorneys’ fees.

7

Accordingly,

8

IT IS HEREBY ORDERED that Defendant’s Renewed Motion for Judgment as a

9
10
11

Matter of Law (Doc. 88) is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion for a New Trial (Doc. 89)
is DENIED.

12

IT IS FURTHER ORDERED that Plaintiff’s Motion for Final Judgment (Doc. 85)

13

is GRANTED. The Clerk of Court shall enter judgment in favor of Plaintiff and against

14

Defendant on Plaintiff’s ADEA claim in the amount of $44,109.30 in back pay and

15

$2,898.54 in prejudgment interest for a total judgment amount of $47,007.84. The Court

16

further awards Plaintiff post-judgment interest on all applicable amounts in accordance

17

with 28 U.S.C. § 1961 from the date this judgment is entered until paid at the rate of 2.44%

18

per annum.

19
20

IT IS FURTHER ORDERED that Plaintiff is awarded $23,503.92 in liquidated
damages and $3,287.92 in court costs.

21

IT IS FURTHER ORDERED that Plaintiff’s Motion for Attorneys’ Fees

22

(Doc. 83) is GRANTED. Plaintiff is entitled to attorney fees in the amount of $31,780.00.

23

IT IS FINALLY ORDERED that the Clerk of Court shall enter judgment

24
25
26
27

accordingly.
Dated this 31st day of March, 2019.
Honorable Diane J. Humetewa
United States District Judge

28

- 18 -