final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Leon County. Karen Gievers,
L. Messersmith of Rumberger, Kirk & Caldwell, P.A.,
Orlando; Linda Bond Edward and David B. Shelton of Rumberger,
Kirk & Caldwell, P.A., Tallahassee, for Appellant.
Richard E. Johnson of the Law Office of Richard E. Johnson,
Tallahassee; Marie A. Mattox and James Garrity of Marie A.
Mattox, P.A., Tallahassee, for Appellee.
Timothy Moore won a $40, 000 verdict plus front pay on his
age discrimination claim against his employer Capital Health
Plan (CHP), which promoted a younger doctor to a position
that Dr. Moore sought. On appeal, CHP takes issue with the
sufficiency of the evidence, the jury instructions, the award
of front pay, and the attorneys' fee award. We affirm,
except for the attorneys' fees issue, which we remand for
2015, Dr. Moore filed a complaint alleging age discrimination
against CHP under the Age Discrimination in Employment Act
(ADEA). The complaint alleged that CHP had created a new
position within its eye care department and selected a less
qualified doctor thirty years Dr. Moore's junior. The
case went to trial in 2017. After Dr. Moore rested his case,
CHP moved for a directed verdict, arguing that Dr. Moore had
failed to show that its nondiscriminatory reasons for
selecting the younger doctor were pretextual. The trial court
denied the motion and the case was sent to the jury. The jury
found for Dr. Moore and awarded $40, 000 in lost wages.
moved post-trial for front pay and attorneys' fees, which
CHP contested. The court awarded both. Dr. Moore received
front pay in the amount of $10, 000 for every year he
continues to be employed by CHP. On attorney's fees, the
parties agreed on the number of hours worked, but not on the
hourly rates. The court ultimately determined the hourly
rates based on the testimony of one of Dr. Moore's
attorneys and the transcript of a fee hearing in a different
case in federal court. CHP now appeals the final judgment and
the orders granting front pay and attorneys' fees.
no error or abuse of discretion with the first three issues
raised by CHP. First, with respect to the denial of CHP's
directed verdict motion, we must affirm unless "no
proper view of the evidence could sustain a verdict in favor
of the nonmoving party." Owens v. Publix
Supermarkets, Inc., 802 So.2d 315, 329 (Fla. 2001).
Review is de novo. Williams v. Washington, 120 So.3d
1263, 1264 (Fla. 1st DCA 2013). In this case, although CHP
presented evidence suggesting that its hiring decision was
based on legitimate, non-discriminatory reasons, Dr. Moore
produced competent conflicting evidence that CHP's given
reasons for choosing the younger doctor over him were
pretextual and that age was the actual reason. Given the
conflicting evidence, we cannot conclude that the trial court
erred by denying CHP's motion for directed verdict.
no reversible error was made as to the jury instructions. We
agree with CHP's argument that Dr. Moore couldn't
prevail on his ADEA claim just by proving that age was
"a motivating factor" in the promotion decision
rather than a "but-for" reason. See Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167, 175- 76 (2009). But
the jury instructions correctly reflected the law on this
point, even while adding that age discrimination needn't
be the "sole cause" for the employer's action.
See, e.g., Leal v. McHugh, 731 F.3d 405, 415 (5th
Cir. 2013) (noting that "but-for cause" does not
mean "sole cause . . . an employer may be liable under
the ADEA if other factors contributed to its taking the
adverse action, as long as age was the factor that made a
difference") (quoting Jones v. Okla. City Pub.
Schs., 617 F.3d 1273, 1277 (10th Cir. 2010)). [*] A new trial
isn't warranted here because the jury instructions stated
that age must be determinative. The instructions surrounding
the part of the instruction disputed by CHP-the "a
determining consideration" language-clarifies potential
ambiguities by repeatedly hinging CHP's liability on
whether its decision not to promote Dr. Moore was because of
age. This was also reflected on the verdict form which asked
the jury to decide whether "[CHP] did not award [Moore]
the [promotion] because of his age?" We find no abuse of
discretion on this issue.
on the front pay issue, CHP argues that it was necessary for
Dr. Moore to show particularly "egregious
circumstances" in order to receive front pay. It cites
an Eleventh Circuit case where an employee could not return
to his work environment because of pronounced discrimination.
See Lewis v. Fed. Prison Indus., Inc., 953 F.2d
1277, 1281 (11th Cir. 1992). In Lewis, the employer
offered to reinstate the plaintiff, which would typically
terminate back pay and front pay, and the court had to decide
whether the plaintiff reasonably rejected that offer in favor
of front pay as an equitable matter. Id. at 1279.
The rule from this case was that in circumstances where the
employer offers reinstatement, the court would expect the
plaintiff to show "egregious circumstances" that
foreclosed acceptance of the offered reinstatement.
Id. at 1281. This case does not involve a
reinstatement dispute between the parties. Judge
Tjoflat's partial concurrence in Lewis more
closely addressed the circumstances here, where he approved
of the remedy awarded here in failure-to-promote cases:
"where the promotion cannot be awarded because the
position sought has been filled, the court can, as an equity
remedy, simply order the employer to pay the employee the
wages of that position." Id. at 1286. Judge
Tjoflat's equitable view is consistent with the
ADEA's provision for plaintiffs to be restored to the
economic position he or she "would have occupied but for
the illegal discrimination." Farley v. Nationwide
Mut. Ins. Co., 197 F.3d 1322, 1338 (11th Cir. 1999).
Front pay is an equitable remedy generally available to trial
courts as a means of making plaintiffs whole. See Duke v.
Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir. 1991)
(noting that "virtually all circuits that have
considered the subject [have concluded] that front pay is an
available remedy to complete the panoply of remedies
available to avoid the potential of future loss"). In
this case, the award of the difference in salary that Dr.
Moore would have made if promoted provides restitution. It
allows Dr. Moore to be made whole without forcibly bumping
the incumbent out of the lone associate chief position, an
alternative remedy that neither party sought. Cf. Lander
v. Lujan, 888 F.2d 153, 157 (D.C. Cir. 1989) (discussing
the option of removing incumbents who are innocent
beneficiaries of an employer's discrimination). The
equitable remedy crafted by the trial court fell within its
discretion under these circumstances.
CHP argues that Dr. Moore presented insufficient evidence
supporting the requested hourly rates of his attorneys.
Appellate courts review awards of attorneys' fees for an
abuse of discretion. Shelly L. Hall, M.D., P.A. v.
White, 97 So.3d 907, 909 (Fla. 1st DCA 2012). Section
760.11(5), Florida Statutes, allows prevailing parties to
recover attorneys' fees consistent with federal case law
interpreting Title VII. Winn-Dixie Stores, Inc. v.
Reddick, 954 So.2d 723, 731 (Fla. 1st DCA 2007). One of
the prerequisites of an award is that the trial court must
determine a reasonable hourly rate for the services of the
prevailing party's attorney. Fla. Patient's Comp.
Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985). The
party seeking the fees carries the burden of establishing