Imwalle v. Reliance Medical ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0066p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellee, -
DENNIS IMWALLE,
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No. 06-4619
v.
,
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RELIANCE MEDICAL PRODUCTS, INC. et al., -
Defendants-Appellants. -
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 04-00275—Herman J. Weber, District Judge.
Argued: October 30, 2007
Decided and Filed: February 8, 2008
Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS, District Judge.*
_________________
COUNSEL
ARGUED: Mark J. Stepaniak, TAFT, STETTINIUS & HOLLISTER, Cincinnati, Ohio, for
Appellants. George M. Reul, Jr., FREKING & BETZ, Cincinnati, Ohio, for Appellee. ON BRIEF:
Mark J. Stepaniak, Doreen Canton, Rachel S. Zahniser, TAFT, STETTINIUS & HOLLISTER,
Cincinnati, Ohio, for Appellants. George M. Reul, Jr., Randolph H. Freking, FREKING & BETZ,
Cincinnati, Ohio, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Dennis Imwalle became President of Reliance
Medical Products, Inc. in 1990. He was fired in January of 2004, three months after he filed a
charge with the Equal Employment Opportunity Commission (EEOC) that alleged both age and
national-origin discrimination. He was 62 years old at the time his employment ended. Imwalle’s
suit in the district court resulted in a $185,000 jury verdict for compensatory damages based on his
claim that he was fired in retaliation for filing his discrimination claims. The court subsequently
awarded him approximately $250,000 more in attorney fees, costs, and prejudgment interest.
*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
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Reliance and its affiliated companies have appealed, challenging both the district court’s
denial of their motion for judgment as a matter of law and the amount of the award for attorney fees
and costs. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. The Haag-Streit companies
Haag-Streit Holding AG (HSH AG) is a holding company based in Bern, Switzerland that
has 18 subsidiaries located in the United States and throughout Europe. The Haag-Streit companies
are providers of medical instruments and equipment for ophthalmologists, optometrists, and
opticians. HSH AG acquired Reliance, a company based in Mason, Ohio, in 1988. Ten years later,
HSH AG consolidated all of its U.S. operations, including Reliance, under Haag-Streit Holding US,
Inc. (HSH US). HSH AG’s U.S.-based distribution companies—including Moeller Microsurgical,
Inc. (Moeller), Haag-Streit Service, Inc., Clement Clarke, Inc., and Interzeag, Inc.—were
consolidated at that time to form Haag-Streit USA, Inc. (HS USA), a subsidiary of HSH US that is
also located in Mason. Reliance was not included in that consolidation. As a result, Reliance and
HS USA are each a direct subsidiary of HSH US. All of the defendants are hereafter collectively
referred to as “Haag-Streit.”
B. The individual parties
Imwalle, a U.S. citizen who was born on August 7, 1941, was hired as President of Reliance
in May of 1990. His employment agreement automatically renewed each year in the absence of any
proper notice to the contrary. In July of 1999, Imwalle also became President of HSH US,
Reliance’s parent company, and, a month later, was named Vice President (VP) and Chief Operating
Officer (COO) of HS USA. Prior to 1999, Imwalle had no role in any of the Haag-Street companies
other than Reliance. He continued to serve as President of Reliance at all times relevant to this
lawsuit.
Throughout his employment, Imwalle reported to Walter Inabnit, a Swiss national who was
chairman of HSH AG, HSH US, HS USA, and Reliance, and who also served as President of
HS USA. Rene Ott, also a Swiss national, became COO of HSH AG in April of 2000. In that
capacity, Ott was responsible for the operations of all of HSH AG’s subsidiaries and was Imwalle’s
immediate boss. Dominick Beck, a 38-year-old Swiss national, replaced Inabnit as President of
HS USA in January of 2003. Thereafter, Imwalle no longer served as VP of HS USA, but he
continued to hold the positions of President of Reliance, President of HSH US, and COO of HS
USA.
C. Reliance’s success under Imwalle
Imwalle testified that when he became President of Reliance in 1990, the company’s
facilities were “a dump,” “production flow was terrible,” and the company was “nothing” and a
“nobody.” Following Imwalle’s arrival, the company built a 10,000 square-foot facility and
obtained independent certification attesting to the company’s compliance with international quality-
management standards. Imwalle, Ott, Haag-Streit’s independent auditor Richard Batterberry, and
Haag-Streit’s human resources director Roy Grandstaff all testified that Reliance operated on
budget, doubled its sales, and saw profits increase while Imwalle was President.
Batterberry and Grandstaff also acknowledged that Reliance was “always profitable,” “a very
successful part of the business,” and “very well controlled” while Imwalle was President.
Grandstaff testified that 2003—Imwalle’s last full year with Reliance—was the “highest volume
sales year in the 100 plus year history of the company.” Inabnit and Ott both said that they were
satisfied with Imwalle’s performance as President of Reliance.
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Haag-Streit does not dispute the foregoing, but highlights the fact that Reliance saw its sales
decline by 14% in the early months of 2001. Imwalle attributed the sales slump to a wider economic
recession. Ott was dissatisfied with that explanation, however, and blamed Imwalle for failing to
foresee the recession and minimize its effects on the company. But Ott acknowledged at trial that
there was an “official recession in the United States” in March of 2001. He also testified that the
decline in sales lasted until May of 2001, after which Reliance’s sales and profits rebounded.
D. Moeller problems identified
Haag-Streit argues that Inabnit and Ott had a legitimate, nondiscriminatory reason for
Imwalle’s termination: poor performance by Imwalle, citing accounting and inventory problems at
Moeller. Imwalle does not dispute Haag-Streit’s contention that such problems plagued Moeller.
Instead, he argues that this explanation was simply a pretext designed to mask retaliation for his
complaints of discrimination. In support of his case, Imwalle introduced evidence to show that he
was not responsible for Moeller’s problems and that he in fact tried to fix them.
Moeller, a microscope-distribution company, was originally formed in New Jersey in 1992
as a distribution company for Moeller-Wedel, a German company. HS USA acquired the company
in 1998 and made it a division. Moeller was in financial distress at the time of the acquisition and
was “virtually bankrupt” within two years. In July of 1999, Inabnit and Imwalle met with the
managing director of a HSH AG subsidiary in Germany to discuss a “major inventory/accounting
problem” involving Moeller. According to HSH AG’s independent auditor Batterberry, Moeller had
“an enormous amount of obsolete inventory onsite that require[d] write offs of approximately
$1.4 million.” This problem was exacerbated by the fact that Moeller did not employ an accountant,
had not established any inventory controls, and had no system to track inventory. Batterberry
detailed Moeller’s problems in a letter dated January 28, 2004 (just one day after Imwalle was
terminated) as follows:
The magnitude of the poor operating results of this division . . . is staggering for a
business of its size. This continuing pattern of substantial losses is something that
we very rarely see with our other audit clients. This history was certainly
compounded by the magnitude of the adjustments needed in the past several years
to adjust for prior years’ inventory deficiencies. . . . While there were a number of
issues, the major business problem always seemed to be the low volume of sales
which never allowed the Moller [sic] division to break even on a financial
basis. . . . As your auditors, we found it curious that so many difficult issues plagued
the Moller Microscope division that were not found in other parts of the US
operation. Except for the Moller Microscope division, we have found that [sic]
internal controls to be generally effective, accounting systems to be functioning in
a very acceptable manner, and personnel to be helpful to us as auditors and
conscientious in performing their responsibilities.
The letter went on to explain that, in addition to the $1.4 million write-off, the continuing problems
at Moeller could be traced to the way in which Moeller employees managed sales, purchasing,
inventory tracking, and financial controls on a day-to-day basis.
Following the July 1999 meeting, Inabnit asked Imwalle to “dig in and review procedures”
at Moeller. Batterberry confirmed that Imwalle and Dave Edenfield, the Chief Financial Officer
(CFO) of HS USA, “were able to implement procedures and controls at the Moller [sic] division that
were in effect at the other [Haag-Streit] US divisions . . . .” The Moeller problems persisted,
however, and, in the spring of 2002, Inabnit told Imwalle that “he was very disappointed with the
continuation of the Moeller inventory issues.”
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Inabnit and Ott repeatedly told Imwalle that he was responsible for the inventory problems
at Moeller and they expressed frustration that the problems continued to plague the company.
Although Inabnit and Ott repeatedly blamed Imwalle for the Moeller problems, Ott later testified
that a prior VP of Sales was responsible for the “inventory mess.” Batterberry, in his January 2004
letter, blamed the then-current VP of Sales, Ed Rae, and Moeller personnel generally, for careless
management, while emphasizing Imwalle’s and Edenfield’s role in trying to solve the problems.
In June of 2002, Imwalle attended management meetings in Bern, Switzerland and
recommended, along with others, that the Moeller division be closed. He testified that when he left
the meeting, he thought that a consensus had been reached to close operations, only to learn later
that Inabnit had overruled the decision. Thereafter, Imwalle says that he was excluded from
meetings related to Moeller. Ott testified that Moeller was in fact eventually closed at the
recommendation of HS USA President Beck, who told Ott that Moeller “did not fit into Haag-Streit
USA’s wholesale structure.”
Haag-Streit introduced evidence that, from about 2000 to 2002, Inabnit and Ott continued
to express frustration about the Moeller operation to Imwalle and blamed him for a variety of other
system-wide problems, including personnel issues and dissatisfaction with public relations and new-
product promotions. They also voiced concerns about the sales ledger being updated and Imwalle’s
calculation of his and his team’s bonuses for 2000. Ott’s and Inabnit’s primary concern, however,
remained the problems at Moeller.
E. Imwalle asked to resign
Haag-Streit claims that “[b]etween January and May 2003, Inabnit and Ott decided to
terminate Imwalle for poor performance.” It asserts that the decision was based on an accumulation
of concerns, including the Moeller inventory problems. On May 7, 2003, Ott told Imwalle that
Haag-Streit needed “a leadership change at the top” and asked Imwalle to sign a previously prepared
resignation letter. The letter stated that, effective August 31, 2003, Imwalle would resign as
President of HSH US, as COO of HS USA, and as President of Reliance.
According to Haag-Streit, Imwalle refused to sign the letter,“challeng[ing] Ott to fire him
on the spot.” Ott then “suggested that Imwalle could remain as President of Reliance at a greatly
reduced salary and asked Imwalle to make him an offer.” Imwalle told Ott that he wanted to see an
attorney first, but that he would respond before May 23, 2003. The request for his resignation,
Imwalle testified, took him by surprise:
There were previous incidents, . . . especially the meeting in Berne [sic], the
progressive moving me out of the management of Haag-Streit USA, the exclusion
from the Moeller meetings. I wasn’t allowed to go to the annual AAO meeting,
which was in Orlando that year. And those kinds of signs give you notice of an
approaching storm but you never know when it is going to hit, and I had no
reprimand. I thought the first that would happen would be that.
On May 22, 2003, Imwalle’s attorney sent a letter to Ott, claiming that Imwalle had been
discriminated against on the basis of his age and referencing Imwalle’s employment agreement. Ott
said he was “very surprised” by the letter because he had not been aware that Haag-Streit had an
employment contract with Imwalle. Haag-Streit acknowledges that Inabnit and Ott, upon learning
of Imwalle’s employment agreement, decided “to accept [Imwalle’s] employment agreement and
follow it ‘100 percent’ by paying Imwalle through the end of the contract,” even though they were
aware that the agreement allowed for immediate termination.
Imwalle’s contract was scheduled for renewal in June of 2004. Ott testified that he “didn’t
want to fire Imwalle [in May of 2003]. That was not the intention. I wanted to stabilize the
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 5
company.” Ott explained that he and Inabnit “decided to allow Imwalle to continue working at
Reliance for an indeterminate period of time to get some value in return for paying his salary under
the employment agreement.” As a result, Imwalle remained President of Reliance and retained his
position with HSH US.
Imwalle and Ott both testified that, after May of 2003, Imwalle “continued to perform his
job at Reliance as he had for the past 14 years.” But Imwalle also testified that an “atmosphere of
retaliation” existed in 2003, following his attorney’s May 22 letter alleging age discrimination by
Haag-Streit. He said that, after May of 2003, he “was more or less divorced from the activities at
Moeller Microsurgical [and] Haag-Streit USA.” Imwalle also claimed that he was excluded from
meetings and that “key decisions” were made “without his input or knowledge.” As an example of
his exclusion, Imwalle cites Haag-Streit’s decision in July or August of 2003 to finally close down
the Moeller operation. Imwalle said that he was not involved in the decision, even though he was
still COO of HS USA and President of HSH US at that time, and had previously recommended
closing Moeller. Haag-Streit does not dispute Imwalle’s lack of involvement in the decision.
On October 31, 2003, Imwalle filed a charge of age and national-origin discrimination with
the EEOC. Imwalle points to several incidents involving Inabnit and Ott that allegedly reflect their
biases against both elderly persons and Americans. In support of his claim of age discrimination,
Imwalle testified, and Ott acknowledged, that at the 2002 management meeting in Bern,
Switzerland, Ott suggested that Haag-Streit “[d]ismiss people (if possible elderly people)” as a way
of addressing the company’s financial problems. The “elderly people” comment appeared in the
Powerpoint slide presentation that Ott gave at the Bern meeting.
Imwalle testified that he “was stunned” upon seeing that statement in Ott’s presentation
because “this dangerous situation applied to Haag-Streit USA, and I was the elderly COO of Haag-
Streit USA and when the gun is pointed at you, you freeze. . . . I have never seen anything so
disgusting.” Imwalle was 61 years old at the time. Ott said that he and Imwalle later discussed
Imwalle’s concerns about dismissing elderly people, and that Imwalle told him that such action
could violate U.S. employment laws. Ott explained that he “never understood why this
[recommendation to dismiss elderly people] suddenly appears to be—this one line, in a huge
presentation, suddenly appears as being such a big issue. I still have a problem with this.”
Switzerland does not have age-discrimination laws, and Ott said that he “didn’t know about
at what age this laws [sic] [protecting against age discrimination] would apply. . . . And so I didn’t
know that this [recommendation] is illegal concerning Mr. Imwalle.” Imwalle also testified that, at
the May 7, 2003 meeting where he was asked to resign, Ott told Imwalle that “when I reach your
age, I hope to retire and perform community work.”
In support of his claim of national-origin discrimination, Imwalle alleged that Inabnit told
him during a business trip in 1996 that his “biggest mistake was hiring an American manager
[meaning plaintiff]. I will never make that mistake again.” (Alternation in original.) Although
Haag-Streit disputes this allegation, the district court observed that since the time that Inabnit
purportedly made the statement, no other American-born manager had been hired by the Haag-Streit
group. Inabnit also testified that he and his family “loved the [United] States,” but that “sometimes
we have surmised the feeling [that we are,] and sometimes I feel[,] discriminated [against].” He also
expressed frustration at American laws: “We have to fill out forms. We have to mark something,
we will not kill the president or whatever. And we are questioned. We are searched. I feel
discriminated [against] by America.” In a similar vein, Ott testified that it is a “very strange feeling”
and “very, very hard” for him to be accused of retaliation and discrimination by Imwalle because
he has to “defend [against] something I never committed.”
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 6
F. Imwalle’s termination
On January 27, 2004, three months after Imwalle filed his complaint of discrimination with
the EEOC, Ott presented Imwalle with a termination letter stating that, effective immediately,
Imwalle had been removed as President of Reliance and of HSH US. Reliance gave notice in the
letter of its intent not to renew Imwalle’s employment agreement beyond June 18, 2004, the
expiration of the then-current term of the agreement. Until that time, the letter stated, Imwalle
would remain an “employee” or “consultant” of Reliance with the sole responsibility of meeting
once a week with HS USA President Dominick Beck to consult on matters of Beck’s choice.
According to Human Resources Director Roy Grandstaff’s notes, Ott began the January 27,
2004 meeting by reading the following written statement, which he had prepared in advance:
“‘Dennis, I know that you know that Haag-Streit (HS) never committed discrimination in the past,
at present, and will not in the future. I therefore canot [sic] understand why you raise such a claim.’
We are not discriminatory, just not.” At the end of the brief meeting, Imwalle handed over his office
keys and company credit card. He left the office that day and never returned. Pursuant to the
severance provisions in his employment agreement, Imwalle received his salary and benefits through
August of 2004.
G. Procedural history
Imwalle filed suit in April of 2004 against Reliance; HSH US, Reliance’s parent company;
HSH AG, HSH US’s parent company; and HS USA, Inc., a subsidiary of HSH US and affiliate of
Reliance. (As previously noted, the foregoing companies are collectively referred to in this opinion
as “Haag-Streit.”) He asserted nine claims relating to his allegations of age and national-origin
discrimination and of retaliation. After dismissing two claims on summary judgment, the district
court submitted the rest to the jury. After a five-day trial on the merits, the jury returned a verdict
in favor of Imwalle on his retaliation claims and awarded him $185,000 in compensatory damages.
The jury found for Haag-Streit on the claims of discrimination.
Haag-Streit then filed a motion for judgment as a matter of law on the retaliation claims,
which the district court denied. The district court also awarded attorney fees, costs, and prejudgment
interest to Imwalle that totaled approximately $250,000.
Haag-Streit appeals the district court’s denial of its motion for judgment as a matter of law
and challenges the district court’s award of attorney fees and costs. It argues that Imwalle failed to
establish a prima facie case of retaliation or prove that Haag-Streit’s proffered reason for
terminating Imwalle was a pretext to hide retaliation.
II. ANALYSIS
A. Retaliation claim
1. Standard of review
We review de novo a district court’s denial of a motion for judgment as a matter of law.
United States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th Cir. 2003). Judgment as a matter of
law will be granted only where “a party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) (quoting Fed. R. Civ. P. 50(a)). The
grant is appropriate only if, in viewing the evidence in the light most favorable to the nonmoving
party, “reasonable minds could come to but one conclusion, in favor of the moving party.” Gray
v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir. 2001). In reviewing the district
court’s decision, we may not “weigh the evidence, pass on the credibility of witnesses, or substitute
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 7
[our] judgment for that of the jury.” Toth v. Yoder Co., 749 F.2d 1190, 1194 (6th Cir. 1984);
see also Reeves, 530 U.S. at 150.
2. Retaliation claims under Title VII, the ADEA, and Ohio state law
Title VII forbids an employer from “discriminat[ing] against any of his employees . . .
because [the employee] has opposed any practice made an unlawful employment practice by [Title
VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under [Title VII.].” 42 U.S.C. § 2000e-3(a). Unlawful
employment practices under Title VII include any actions taken on the basis of race, color, religion,
sex, or national origin that “discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2.
The Age Discrimination in Employment Act (the ADEA) similarly prohibits an employer
from “discriminat[ing] against any of his employees . . . because such individual . . . has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation
under this [Act].” 29 U.S.C. § 623(d). Section 4112.02(I) of the Ohio Revised Code likewise makes
it unlawful for
any person to discriminate in any manner against any other person because that
person has opposed any unlawful discriminatory practice defined in this section or
because that person has made a charge, testified, assisted, or participated in any
manner in any investigation, proceeding, or hearing under sections 4112.01 to
4112.07 of the Revised Code.
A plaintiff in a Title VII or ADEA action may establish retaliation either by introducing
direct evidence of retaliation or by proffering circumstantial evidence that would support an
inference of retaliation. DiCarlo v. Potter, 358 F.3d 408, 420 (6th Cir. 2004). Direct evidence is
that evidence which, if believed, requires no inferences to conclude that unlawful retaliation was a
motivating factor in the employer’s action. Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir.
2003) (finding that the plaintiff’s evidence was circumstantial where “it would not require the
conclusion that defendant unlawfully retaliated against plaintiff; rather, one could draw that
conclusion only by making a series of inferences” from plaintiff’s evidence); Christopher v. Stouder
Mem’l Hosp., 936 F.2d 870, 879 (6th Cir. 1991) (holding that the plaintiff had no need to prove
pretext where she presented, and the factfinder believed, that her supervisors informed her and told
others that their actions were taken in response to her protected activity).
In the present case, Imwalle did not present any direct evidence of retaliation, such as an
explicit statement from Haag-Streit that it was firing him in response to his discrimination claims.
He instead advanced a circumstantial case for retaliation.
When a plaintiff presents only circumstantial evidence, we examine Title VII, ADEA, and
Ohio state-law retaliation claims under the same McDonnell Douglas/Burdine evidentiary
framework that is used to assess claims of discrimination. Wrenn v. Gould, 808 F.2d 493, 500 (6th
Cir. 1987) (applying McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), to a retaliation claim); Mitchell
v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (“The McDonnell Douglas/Burdine formula is
the evidentiary framework applicable not only to claims brought under Title VII, but also to claims
under ADEA.”); Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th Cir. 2005) (holding that the ADEA
analysis is applicable to state-law claims brought pursuant to Ohio’s age-discrimination law).
The plaintiff has the initial burden under the McDonnel Douglas/Burdine framework to
establish a prima facie case of retaliation by showing that (1) he engaged in protected activity,
(2) this exercise of his protected civil rights was known to the defendant, (3) the defendant thereafter
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took an employment action adverse to the plaintiff, and (4) there was a causal connection between
the protected activity and the adverse employment action. See EEOC v. Avery Dennison Corp.,
104 F.3d 858, 860 (6th Cir. 1997).
The burden then shifts to the employer to produce evidence of a legitimate,
nondiscriminatory reason for its actions once the plaintiff presents sufficient evidence to make out
a prima facie case. Avery Dennison, 104 F.3d at 862 (citing Burdine, 450 U.S. at 253). If the
defendant satisfies this burden, the plaintiff must then demonstrate by a preponderance of the
evidence that the legitimate reason offered by the defendant was not its true reason, but instead was
a pretext designed to mask retaliation. Id.
In order to prevail on a claim of retaliation where the defendant has articulated a legitimate,
nondiscriminatory reason for the adverse employment action, the plaintiff must prove not only that
the defendant’s proffered reason was a pretext, but that the real reason for the employer’s action was
intentional retaliation. Id. (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). The
Supreme Court has held, however, that “it is permissible for the trier of fact to infer the ultimate fact
of discrimination from the falsity of the employer’s explanation.” Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 147 (2000). In Reeves, the Supreme Court explained that
[p]roof that the defendant’s explanation is unworthy of credence is simply one form
of circumstantial evidence that is probative of intentional discrimination, and it may
be quite persuasive. See [St. Mary’s, 509 U.S.] at 517 (“[P]roving the employer’s
reason false becomes part of (and often considerably assists) the greater enterprise
of proving that the real reason was intentional discrimination”). . . . Thus, a
plaintiff’s prima facie case, combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact to conclude that
the employer unlawfully discriminated.
Id. at 147-48.
Applying the foregoing principles to a retaliation claim, this court has held that a plaintiff’s
prima facie case, combined with disbelief of the defendant’s proffered reasons for the negative
employment action, permits a finding of retaliation by the factfinder. See Abbott, 348 F.3d at 542
(citing St. Mary’s, 509 U.S. at 511); Kline v. Tenn. Valley Auth., 128 F.3d 337, 347 (6th Cir. 1997)
(discussing the “import of the [St. Mary’s Honor Ctr. v.] Hicks holding in this circuit”). The
Supreme Court in Reeves held that “[o]nce the employer’s justification has been eliminated,
discrimination may well be the most likely alternative explanation, especially since the employer
is in the best position to put forth the actual reason for its decision.” Reeves, 530 U.S. at 147-48.
In Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994), this
court identified three ways in which a plaintiff may rebut a defendant’s legitimate,
nondiscriminatory reason and demonstrate pretext. The plaintiff may show that (1) the employer’s
stated reason for terminating the employee has no basis in fact, (2) the reason offered for terminating
the employee was not the actual reason for the termination, or (3) the reason offered was insufficient
to explain the employer’s action. Id. Regardless of which rebuttal method is employed, the plaintiff
retains the ultimate burden of producing “sufficient evidence from which the jury could reasonably
reject [the defendants’] explanation and infer that the defendants intentionally discriminated against
him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (alteration in original). “The jury
may not reject an employer’s explanation . . . unless there is a sufficient basis in the evidence for
doing so.” Manzer, 29 F.3d at 1083 (holding that the plaintiff must produce sufficient evidence from
which the jury may reasonably reject the employer’s explanation) (emphasis in original).
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Haag-Streit argues that it is entitled to judgment as a matter of law because Imwalle failed
to establish a prima facie case. Both the Supreme Court and this court, however, have held that a
party framing its argument on appeal in prima facie terms, after a jury trial on the merits, has
“unnecessarily evaded the ultimate question of discrimination vel non.” U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714 (1983) (italics in original); EEOC v. Avery Dennison Corp.,
104 F.3d 858, 861 (6th Cir. 1997) (“Following a trial on the merits, the district court, therefore,
cannot return to a consideration of whether plaintiff has proven its prima facie case. This is a
preliminary matter which cannot be revisited at a later time.”) Our duty at this stage of the
proceedings is therefore to determine the ultimate question: whether Imwalle produced sufficient
evidence to support the jury’s finding that Haag-Streit terminated his employment in retaliation for
his complaints of age and national-origin discrimination. See Avery Dennison, 104 F.3d at 862
(“The proper inquiry following the presentation of all evidence in a Title VII case is whether the
plaintiff has proven its case by a preponderance under the McDonnell Douglas-Burdine-St. Mary’s
burden shifting framework.”).
Accordingly, we “cannot simply hold that [Imwalle’s] failure to provide evidence of an
essential element of [his] prima facie case is dispositive here.” See Tisdale v. Fed. Express Corp.,
415 F.3d 516, 529 (6th Cir. 2005) (explaining the proper analysis where the defendant challenges
the plaintiff’s prima facie case of retaliation following a jury verdict). In reaching our determination
on the ultimate question of retaliation, we may review “all of the evidence in the record,” including
the evidence supporting Imwalle’s prima facie case. See Reeves, 530 U.S. at 150.
This is not to say, however, that a plaintiff’s failure to present evidence sufficient to make
out a prima facie case is irrelevant to our review of the ultimate question. Gray, 263 F.3d at 599
(addressing an alleged weakness in the plaintiff’s prima facie case following a jury trial). Although
Imwalle clearly produced evidence to support a finding that he engaged in protected activity, that
the exercise of his civil rights was known to Haag-Streit, and that Haag-Streit took an adverse
employment action against him by removing him as President of Reliance and terminating his
employment agreement, the fourth prong of his prima facie case (establishing a causal connection)
presents a closer question and is relevant to whether Imwalle is ultimately able to prove pretext.
3. The ultimate question of retaliation
Haag-Streit asserts that Inabnit and Ott terminated Imwalle for poor performance. Poor
performance is a legitimate, nondiscriminatory reason for terminating a person’s employment and,
by articulating such a reason, Haag-Streit met its initial burden under the McDonnell
Douglas/Burdine framework. The final burden therefore shifted to Imwalle to prove that Haag-
Streit’s stated reason for his termination was in fact a pretext designed to hide retaliation. See Avery
Dennison, 104 F.3d at 862.
Imwalle takes the second Manzer approach by arguing that “[Haag-Streit’s] claims of poor
performance were simply not credible given the substantial evidence that proved otherwise.” See
Manzer, 29 F.3d at 1084. A plaintiff using the second approach must show that the proffered reason
“did not actually motivate the defendant’s challenged conduct.” Johnson, 319 F.3d at 866 (internal
quotation marks omitted). In this type of showing,
the plaintiff attempts to indict the credibility of his employer’s explanation by
showing circumstances which tend to prove that an illegal motivation was more
likely than that offered by the defendant. In other words, the plaintiff argues that the
sheer weight of the circumstantial evidence of [retaliation] makes it “more likely
than not” that the employer’s explanation is a pretext, or coverup.
Manzer, 29 F.3d at 1084 (emphasis in original).
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 10
Imwalle introduced rebuttal evidence challenging Haag-Streit’s proffered reasons in three
ways. First, Imwalle offered evidence to show that Inabnit and Ott were satisfied with Imwalle’s
performance at Reliance and that, under Imwalle’s leadership, Reliance was a profitable, well-run
business for 14 years. Imwalle next presented evidence that he did not create, and was not
responsible for, the problems at Moeller, and that, notwithstanding the foregoing, he in fact made
every attempt to ameliorate the problems. Finally, Imwalle introduced other circumstantial evidence
to show retaliation, including his own testimony that he experienced an “atmosphere of retaliation”
following his first complaint of discrimination and a statement by Ott at the time of Imwalle’s
termination that reflected Ott’s concern about the discrimination claims.
In evaluating Imwalle’s rebuttal evidence, our analysis reaches the ultimate question of
whether, when viewing the facts in the light most favorable to the plaintiff, Imwalle produced
sufficient evidence for a reasonable jury to find that Haag-Streit’s explanation for terminating
Imwalle was pretextual, and that he was actually terminated in retaliation for his claims of age and
national-origin discrimination. This is essentially a two-part showing, requiring a reasonable
disbelief of Haag-Streit’s poor-performance explanation coupled with circumstantial evidence
showing that retaliation was more likely than not the motivation for Imwalle’s termination. See
Kline, 128 F.3d at 347; Manzer, 29 F.3d at 1084.
a. Disbelief of Haag-Streit’s explanation
Haag-Streit argues that Inabnit and Ott were justified in terminating Imwalle for poor
performance, and relies almost entirely on evidence of the inventory and accounting problems at
Moeller. Imwalle, however, presented substantial evidence that Reliance was a very successful
company under his watch and that he was not responsible for the Moeller problems. As to Reliance,
Imwalle relied on testimony from Inabnit, Ott, Batterberry, and Grandstaff that, during Imwalle’s
14-year tenure as President, Reliance was “always profitable,” “a very successful part of the
business,” and “very well controlled.” The company’s best year, 2003, was not only Imwalle’s last
full year at Reliance, but was also the year in which Haag-Streit asserts that Inabnit and Ott decided
to terminate Imwalle for poor performance.
Haag-Streit seeks to minimize the evidence of Reliance’s success by pointing to the decrease
in sales during part of 2001. Imwalle told Ott that the decline was due to a general economic
recession. Ott rejected that explanation at the time and told Imwalle that he should have foreseen
the recession and did not do enough to protect the Haag-Streit companies from its negative effects.
Even assuming, as Haag-Streit asserts, that Imwalle’s response to the recession was inadequate, the
2001 sales slump does not materially diminish Reliance’s success during Imwalle’s tenure. Sales
decreased for only two months in 2001, and profits and sales rose for three consecutive years
thereafter, eventually reaching a historic high in 2003.
Inabnit and Ott both testified that they were satisfied with Imwalle’s performance as
President of Reliance. Ott said that he had not “lost trust in [Imwalle’s] ability to be president of
Reliance Medical Products,” and that he did not think that Imwalle had “failed in any way in his
responsibilities.” Even Ott’s least-glowing assessment of Imwalle’s performance is positive. He
stated that Imwalle’s performance was “good,” but not “outrageous” or “outstanding” because “good
means [that] it can be excellent,” and that he was “happy with [Imwalle’s performance], but one
could do probably even more”—implying that there is always room for improvement. Ott also
testified that, at the time of Imwalle’s termination in January of 2004, Imwalle “was working like
he did for . . . 14 years before.” Inabnit testified that he, too, “never disputed that Dennis Imwalle
was okay with Reliance.”
As to Moeller, Imwalle presented evidence that the jury could have reasonably relied on to
reject Haag-Streit’s attempts to lay at his feet the blame for Moeller’s accounting and inventory
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 11
problems. According to the evidence in the record, including testimony from the company’s
independent auditor Batterberry, Imwalle was not responsible for the persistent, and ultimately fatal,
problems or for their effect on the rest of Haag-Streit’s business. The problems at Moeller already
existed when it was acquired by, and integrated into, Haag-Streit in 1990-1992, and Moeller was
“virtually bankrupt” within two years—well before Imwalle was given any position of authority
outside of Reliance in 1999.
In January of 2004, less than one week before Ott removed Imwalle as President of both
Reliance and HSH US and relieved him of all operating responsibilities, HSH AG asked Batterberry
for his opinion about the Moeller problems and who was to blame. Batterberry, whom Ott said he
respected, stated that “the magnitude of the poor operating results of [Moeller] . . . is staggering for
a business of its size.” The heart of the problem, according to the auditors, was the way in which
Moeller’s “poor personnel” managed the business. Specifically, they did not employ “the same
degree of care” in managing the Moeller inventory that employees at Reliance or other Haag-Streit
divisions employed, they followed “a set of rules of [their] own making,” and they did not follow
“acceptable business practices” with respect to the company’s operations. The most fundamental
problem, however, was that the Moeller division “was never able to gain an acceptable level of sales
in the US and has never had profitabl[e] financial results.”
Batterberry singled out Ed Rae, then the vice president of sales at Moeller, as being primarily
responsible for the continuing problems. In contrast, he complimented Imwalle for his efforts in
trying to address the problems at Moeller. Batterberry wrote that the auditors “found it curious” that
the Moeller problems did not exist elsewhere in Haag-Streit’s U.S. operations, and repeatedly
emphasized the “night and day comparison” of Moeller, which was plagued by problems, to
Reliance, which operated effectively. Curiously, Ott later testified that Batterberry’s letter was a
“reconfirmation” of what he already knew the situation to be.
The evidence also shows that Imwalle had a limited role in managing the day-to-day business
of Moeller, and that he never held any position at Moeller itself. Prior to 1999, Imwalle had no role
whatsoever in HS USA or any of its divisions. In 1999, around the time that Imwalle was named
VP and COO of HS USA, Inabnit issued a memorandum stating that Imwalle would be responsible
for “long-term” and “general strategic recommendations” for HS USA and would serve on HS
USA’s administrative and operational “steering group” with three other individuals. Ed Rae
remained responsible for Moeller’s daily sales and operations and Inabnit retained ultimate
decisionmaking authority.
Despite this, Batterberry testified that Imwalle and Edenfield, the CFO of HS USA, took “a
lot of steps” and made “every attempt” to implement procedures and controls at Moeller that were
already in place and were working effectively at Reliance and the other Haag-Streit companies. But
the auditors pointed out that even these efforts were unsuccessful and “difficult to implement”
because Moeller personnel were uncooperative and followed their own rules. HSH AG eventually
realized that the problems at Moeller were insoluble. In mid-2003, Haag-Streit closed Moeller’s
operations—an action that Imwalle and others had recommended in 2002.
The independent auditor’s testimony and his letter describing the source and nature of the
Moeller problems seriously undermine the credibility of Haag-Streit’s explanation that Imwalle was
fired for poor performance in dealing with those problems. Based on the foregoing, the jury could
have reasonably disbelieved Haag-Streit’s explanation for terminating Imwalle.
b. Evidence that retaliation was the real reason for Imwalle’s
termination
To prove retaliation under the second prong of Manzer, Imwalle had to show that retaliation
was a more likely motivation for his termination than poor performance. See Manzer,
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 12
29 F.3d at 1084. His evidence on this key issue is considerably weaker than his evidence supporting
a disbelief of why he was purportedly fired.
As an initial matter, we note that Imwalle emphasizes the negative attitudes that Inabnit and
Ott expressed toward elderly people and Americans. This evidence, to be sure, suggests that Inabnit
and Ott may have harbored biases against Imwalle because of his age and national origin, and their
own comments might even constitute direct evidence of discrimination. Indeed, based on such
statements, Imwalle would appear to have a stronger case for discrimination than he does for
retaliation. But the question of discrimination is not before us because the jury returned a verdict
in favor of Haag-Streit on that issue. Instead, the question is one of retaliation. We therefore
confine our review of the evidence to that which is relevant only to Imwalle’s retaliation claim.
Imwalle testified at trial that he experienced “an atmosphere of retaliation” at Haag-Streit
following his complaints of discrimination. He also stated that, between May of 2003 and January
of 2004, he “was more or less divorced from the activities at Moeller Microsurgical [and] Haag-
Streit USA . . . . ,” and that he was excluded from key decisions, including the decision to finally
close the Moeller operations in July or August of 2003.
But the jury also heard evidence suggesting that Imwalle was excluded from various business
decisions before he complained of discrimination in May of 2003. Imwalle testified that he was “no
longer participating in any of the Moeller meetings” prior to his first discrimination complaint. He
also said that Ott had kept him “out of the loop” with regard to Moeller and HS USA since early
2003, and that he saw signs of an “approaching storm” by May of that year. Although this latter
evidence weakens Imwalle’s case for retaliation, the task of weighing the evidence belongs to the
jury, which was entitled to believe Imwalle’s testimony that Haag-Streit took retaliatory actions
against him between May of 2003 and January of 2004. See Toth v. Yoder Co., 749 F.2d 1190, 1194
(6th Cir. 1984) (explaining that, in reviewing a motion for judgment as a matter of law, the court
“may not weigh the evidence, pass on the credibility of witnesses, or substitute its judgment for that
of the jury”).
In addition to the foregoing evidence of retaliatory conduct, Ott began the meeting at which
he terminated Imwalle by reading to Imwalle a prepared statement that said: “Dennis, I know that
you know that Haag-Streit (HS) never committed discrimination in the past, at present, and will not
in the future. I therefore canot [sic] understand why you raise such a claim. We are not
discriminatory, just not.” Ott then told Imwalle that he was being immediately relieved of all further
duties as President of Reliance and of HSH US. Viewing this evidence in a light most favorable to
Imwalle, the fact that Ott made this statement about Imwalle’s discrimination complaints at such a
critical moment raises questions about Haag-Streit’s true motivation for firing Imwalle.
On the one hand, the statement can be taken at face value, made solely for the purpose of
assuring Imwalle that his firing had nothing to do with the alleged discrimination on the part of
Haag-Streit because such discrimination purportedly did not exist. But another plausible
explanation for Ott’s statement is that Imwalle’s discrimination claim had caused both frustration
and resentment on the part of Haag-Streit, and that Ott’s statement was designed to mislead Imwalle
and discourage him from suing.
Ott obviously felt strongly enough about the accusations of discrimination to prepare a
written statement and read it as the first order of business at the meeting he called to let Imwalle go.
Furthermore, the timing of the statement, literally moments before Imwalle was notified that he was
no longer President of Reliance or of HSH US and that his employment agreement was being
terminated, clearly shows that Imwalle’s complaint of discrimination was at the forefront of Ott’s
mind. How to evaluate Ott’s statement was appropriately left for the jury to determine.
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 13
The timing of the termination is another factor that weighs in Imwalle’s favor. This court
has held that a causal connection for purposes of establishing a prima facie case of retaliation can
be shown “through knowledge [of the complaints] coupled with a closeness in time that creates an
inference of causation . . . . However, temporal proximity alone will not support an inference of
retaliatory discrimination when there is no other compelling evidence.” Nguyen v. City of
Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). In this circuit, a period of more than four months was
found to be too long to support an inference of causation. Cooper v. City of North Olmstead, 795
F.2d 1265, 1272 (6th Cir. 1986) (“The mere fact that [plaintiff] was discharged four months after
filing a discrimination claim is insufficient to support an inference of retaliation”); see also Parnell
v. West, No. 95-2131, 1997 U.S. App. LEXIS 12023, at *8 (6th Cir. May 21, 1997) (holding that
“previous [6th Circuit] cases that have permitted a prima facie case to be made based on the
proximity of time have all been short periods of time, usually less than six months”).
Imwalle received Haag-Streit’s termination letter on January 27, 2004, not quite three
months after he filed his EEOC complaint on October 31, 2003. Thus, under our case law, the time
between Imwalle’s EEOC complaint of discrimination and his termination supports an inference of
a causal connection.
Imwalle’s testimony about the retaliatory atmosphere he experienced following his
complaints, Ott’s own statement at the January 2004 meeting, and the relatively short time between
Imwalle’s EEOC complaint and his removal as President—taken together and viewed in Imwalle’s
favor—support an inference of retaliation and satisfy the second part of the Manzer showing.
See Avery Dennison Corp., 104 F.3d at 861 (“[A]t the prima facie stage the burden is minimal,
requiring the plaintiff to put forth some evidence to deduce a causal connection between the
retaliatory action and the protected activity”); Kline, 128 F.3d at 347 (holding that a plaintiff’s prima
facie case, combined with substantial evidence supporting a reasonable disbelief of the employer’s
explanation, supports a jury finding of retaliation); Manzer, 29 F.3d at 1084 (explaining that, under
the second approach to proving retaliation, a plaintiff shows that the “sheer weight of the
circumstantial evidence of [retaliation] makes it ‘more likely than not’ that the employer’s
explanation is a pretext, or coverup”).
Although we find the question to be a close one, the jury was ultimately entitled to make its
own determination about the credibility of the evidence, including extensive trial testimony from
both Imwalle and Ott. We therefore conclude that the totality of the evidence in the record, when
viewed in the light most favorable to Imwalle, does not lead reasonable minds to but one conclusion
in favor of Haag-Streit. Granting its motion for judgment as a matter of law is accordingly not
appropriate and we decline to do so. See Gray, 263 F.3d at 598 (explaining that a motion for
judgment as a matter of law “may be granted only if in viewing the evidence in the light most
favorable to the non-moving party . . . reasonable minds could come to but one conclusion, in favor
of the moving party”).
B. Attorney fees, costs, and prejudgment interest
Following the jury’s verdict in favor of Imwalle, he sought attorney fees, costs, and
prejudgment interest. The district court set forth at length the proper legal standards to be applied
in awarding attorney fees and costs and engaged in a detailed analysis of the amounts requested.
In calculating the award, the court excluded 28.8 hours spent in unsuccessful settlement negotiations
and several hours expended by attorneys who, the court concluded, were not sufficiently involved
in the litigation to warrant the inclusion of their time.
The district court ultimately awarded Imwalle $233,186.50 in fees, $13,070.63 in costs, and
$3,937.61 in prejudgment interest, for a total of $250,194.74. Haag-Streit argues on appeal that the
court abused its discretion in making the award because (1) the paralegal’s fees and expenses to
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 14
attend the depositions of Inabnit and Ott in Switzerland were unnecessary and unreasonable, (2) the
billing descriptions were insufficient, and (3) Imwalle had only limited success on his various
claims.
1. Standard of review
We review a district court’s award of attorney fees and costs for an abuse of discretion.
Singleton v. Smith, 241 F.3d 534, 538 (6th Cir. 2001). The trial court’s exercise of discretion is
entitled to substantial deference because the rationale for the award is predominately fact-driven.
Wilson-Simmons v. Lake County Sheriff’s Dep’t, 207 F.3d 818, 823 (6th Cir. 2000). This deference
“is appropriate in view of the district court’s superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what essentially are factual matters.”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “A district court abuses its discretion when it relies
upon clearly erroneous factual findings, applies the law improperly, or uses an erroneous legal
standard.” Wikol v. Birmingham Pub. Schs. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004).
The starting point for determining the amount of a reasonable attorney fee is the “lodestar”
amount, which is calculated by multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate. Hensley, 461 U.S. at 433. Where the party seeking the
attorney fees has established that the number of hours and the rate claimed are reasonable, the
lodestar is presumed to be the reasonable fee to which counsel is entitled. Pennsylvania v.
Del. Valley Citizens Council for Clean Air, 478 U.S. 546, 564 (1986). An award based on the total
number of hours reasonably expended on the litigation might, however, result in an excessive
amount if the claimant has achieved only partial success. Hensley, 461 U.S. at 435. In such cases,
we must address two issues: (1) whether the claims on which the plaintiff failed to prevail were or
were not related to the claims on which he or she succeeded, and (2) whether the plaintiff achieved
a sufficient degree of success to render the hours reasonably expended a satisfactory basis for
awarding attorney fees. Id. at 434.
Work on an unsuccessful claim cannot be considered to have been “expended in pursuit of
the ultimate result achieved” where the plaintiff has presented distinctly different claims for relief
based on different facts and legal theories. Id. at 435. But where the plaintiff’s claims for relief
involve common facts or related legal theories, such that much of counsel’s time will have been
devoted generally to the litigation as a whole, the court “should focus on the significance of the
overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”
Id. at 435.
The party applying for an award of fees should “exercise ‘billing judgment’ with respect to
hours worked.” Id. at 437. Attorneys who seek fees have an obligation “to maintain billing time
records that are sufficiently detailed to enable courts to review the reasonableness of the hours
expended” on the case. Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990),
abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Human Resources, 532 U.S. 598 (2001). We have explained that “[in] obtaining the number of
hours expended on the case, the district court must conclude that the party seeking the award has
sufficiently documented its claim.” United Slate, Local 307 v. G&M Roofing & Sheet Metal Co.,
732 F.2d 495, 502 (6th Cir. 1984).
2. Paralegal fees and expenses
In the present case, the district court determined that it was “reasonable for a paralegal to
assist with the depositions.” Haag-Streit challenges that finding on the basis that Imwalle’s lead
counsel, Randolph Freking, is “an experienced employment litigator who has taken dozens, if not
hundreds, of depositions.” But even the most experienced litigators might reasonably require the
assistance of a paralegal in a case that involved nine claims and hundreds of exhibits, including
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 15
numerous company documents going back as many as 14 years. Moreover, no matter how
experienced Freking is, he simply could not have known in advance how long the depositions would
take or that only a few exhibits would actually be referred to. Neither Haag-Streit’s argument nor
any evidence in the record provides a basis to find that the district court’s judgment regarding the
paralegal’s fees and expenses was clearly erroneous or an abuse of discretion.
3. Insufficient billing descriptions
The district court also found that Imwalle’s counsel “submitted documentation of sufficient
detail and probative value to enable the [c]ourt to determine with a high degree of certainty that the
remaining hours were actually and reasonably expended in the prosecution of the action.” Haag-
Streit argues, however, that descriptions contained in the billing statement of Imwalle’s counsel
were vague and failed to identify the general subject matter of the activity involved. Specifically,
Haag-Streit points to entries such as “Conference with,” “Research,” “Review file,” “Review
documents,” etc.
The key requirement for an award of attorney fees is that “[t]he documentation offered in
support of the hours charged must be of sufficient detail and probative value to enable the court to
determine with a high degree of certainty that such hours were actually and reasonably expended
in the prosecution of the litigation.” United Slate, 732 F.2d at 502 n.2. Where the documentation
is inadequate, the district court may reduce the award accordingly. Hensley, 461 U.S. at 433.
Although counsel need not “record in great detail” each minute he or she spent on an item,
Wooldridge, 898 F.2d at 1177 (quoting Hensley, 461 U.S. at 437 n.12), “the general subject matter
should be identified.” Cleveland Area Bd. of Realtors v. City of Euclid, 965 F. Supp. 1017, 1020
(N.D. Ohio 1997) (citing Hensley, 461 U.S. 424).
Courts in this circuit have reduced attorney fees on the basis of insufficient billing
descriptions where the attorney did not “maintain contemporaneous records of his time or the nature
of his work,” Keener v. Dep’t of the Army, No. 3-87-0647, 1991 U.S. Dist. LEXIS 4936 at *22
(M.D. Tenn. Feb. 8, 1991), aff’d on decision of the district court by Keener v. Dep’t of the Army,
No. 91-5442, 1992 U.S. App. LEXIS 2822 (6th Cir. Feb. 24, 1992), and where billing records
“lumped” together time entries under one total so that it was “impossible to determine the amount
of time spent on each task.” Cleveland Area Bd. of Realtors, 965 F. Supp. at 1021. On the other
hand, this court has upheld an award of attorney fees and found billing records to be adequate where
entries made by counsel “were sufficient even if the description for each entry was not explicitly
detailed,” McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005), and where the attorney
provided the court with computerized calendars and file information indicating the dates and times
of work performed. Sigley v. Kuhn, Nos. 98-3977/99-3531, 2000 U.S. App. LEXIS 1465 at *20-21
(6th Cir. Jan. 21, 2000); see also Anderson v. Wilson, 357 F. Supp. 2d 991, 999 (E.D. Ky. 2005)
(holding that the plaintiffs had satisfied their burden to provide sufficiently detailed billing records
where counsel provided the court with “itemized statements describing the subject matter, the
attorney, the time allotment, and the charge for all work done on Plaintiffs’ case”).
This court held in Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991), that the party seeking
fees has “the burden of providing for the court’s perusal a particularized billing record.” Once the
prevailing party provides such a record, however, “conclusory allegations that the award was
excessive and that . . . counsel employed poor billing judgment . . . do not suffice to establish that
there was error . . . , particularly in light of the statements of the district court [explaining the award]
and our standard of review.”
Imwalle’s counsel submitted 52 pages of detailed, itemized billing records that specify, for
each entry, the date that the time was billed, the individual who billed the time, the fractional hours
billed (in tenths of an hour), and the specific task completed. The time entries in counsel’s billing
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 16
statement are listed separately and are not lumped together. Each page of the billing record contains
a heading identifying the client, client matter number, and client matter description, and the billing
statement appears to have been computer-generated. Furthermore, the billing records appear to have
been maintained contemporaneously with the completion of the work and indicate the general nature
of the tasks performed.
The billing statements document time billed beginning on March 30, 2004 and ending on
May 21, 2006. This period of time corresponds to the dates on which the litigation commenced and
Imwalle filed a request for attorney fees. The complaint was filed on April 20, 2004, less than a
month after the first time entry, and Imwalle’s motion for attorney fees, costs, and prejudgment
interest was filed on May 23, 2006, two days after the last time entry.
Although some of the time entries in counsel’s billing statement provide only the briefest
description of the task completed, we have held that explicitly detailed descriptions are not required.
See McCombs, 395 F.3d at 360. Counsel’s billing entries, when read in the context of the billing
statement as a whole and in conjunction with the timeline of the litigation, support the district
court’s determination that the hours charged were actually and reasonably expended in the
prosecution of the litigation. See United Slate, 732 F.2d at 502.
4. Limited success
Haag-Streit’s final challenge to the fee award is its argument that the district court erred in
not reducing the lodestar amount on the ground that “Imwalle achieved only limited success at trial,
prevailing on only three of his nine claims and receiving compensatory damages less than one-fourth
of his final settlement demand.” Imwalle’s complaint indeed sets forth nine claims: (1) national-
origin discrimination in violation of Title VII, (2) national-origin discrimination in violation of Ohio
Rev. Code Chapter 4112, (3) age discrimination in violation of the ADEA, (4) age discrimination
in violation of Ohio Rev. Code Chapter 4112, (5) retaliation in violation of Title VII, (6) retaliation
in violation of the ADEA, (7) retaliation in violation of Ohio Rev. Code Chapter 4112, (8) wrongful
discharge in violation of Ohio public policy, and (9) breach of contract.
The district court granted Haag-Streit’s motion for summary judgment with respect to
Imwalle’s public policy and breach of contract claims (claims 8 and 9). On the other hand, the jury
returned a verdict in favor of Imwalle on his three claims of retaliation (claims 5-7), even though
it found in favor of Haag-Streit on his discrimination claims (claims 1-4).
We have “repeatedly rejected mechanical reductions in fees based on the number of issues
on which a plaintiff has prevailed.” Deja Vu of Nashville v. Metro Gov’t of Nashville and Davidson
County, 421 F.3d 417, 423 (6th Cir. 2005). “Litigants in good faith may raise alternative legal
grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not
a sufficient reason for reducing the fee. The result is what matters.” DiLaura v. Twp. of Ann Arbor,
471 F.3d 666, 672 (6th Cir. 2006) (quoting Hensley, 461 U.S. at 435 (footnote omitted)).
“When claims are based on a common core of facts or are based on related legal theories,
for the purpose of calculating attorneys fees they should not be treated as distinct claims, and the
cost of litigating the related claims should not be reduced.” Thurman v. Yellow Freight Sys.,
90 F.3d 1160, 1169 (6th Cir. 1996). The Supreme Court explained in Hensley that
[m]any civil rights cases will present only a single claim. In other cases the
plaintiff’s claims for relief will involve a common core of facts or will be based on
related legal theories. Much of counsel’s time will be devoted generally to the
litigation as a whole, making it difficult to divide the hours expended on a
claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims.
Instead the district court should focus on the significance of the overall relief
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 17
obtained by the plaintiff in relation to the hours reasonably expended on the
litigation.
Hensley, 461 U.S. at 435.
In DiLaura, we explained that, “[b]y focusing on the fact that most of plaintiffs’ claims
failed, the district court does what Hensley specifically forbids: it analyzes a series of related legal
claims based on a common core of facts, and determines the amount of fees, not based on the
plaintiffs’ overall success, but based on the success or failure of the individual claims.” 471 F.3d
at 673. This court has in fact held that discrimination and retaliation claims are related for the
purpose of awarding attorney fees. Lilley v. BTM Corp., 958 F.2d 746, 756 (6th Cir. 1992) (holding
that the district court could not properly reduce the attorney-fee award for time spent on the
plaintiff’s unsuccessful age-discrimination claim because it was related to the plaintiff’s successful
retaliation claim (citing Hensley, 461 U.S. at 437)).
Common facts are at the heart of all of Imwalle’s claims, both successful and unsuccessful,
as noted by the district court. Most importantly, there is a significant overlap in the legal theories
underlying Imwalle’s claims of discrimination and retaliation—all of which were decided by a jury
following a trial on the merits. See Jordan v. City of Cleveland, 464 F.3d 584, 603 (6th Cir. 2006)
(holding that, where there is “an obvious and significant legal overlap” between claims, full recovery
for counsel’s services is appropriate under Hensley).
The McDonnell Douglas/Burdine evidentiary framework, as noted in Part II.A.2 above,
applies to claims of both discrimination and retaliation under Title VII and the ADEA. And Haag-
Streit advanced the identical argument of poor performance in defense against Imwalle’s
unsuccessful claims of discrimination that it advanced in defense of his successful retaliation claims.
In making the same argument in defense against seven of Imwalle’s nine claims, Haag-Streit
necessarily relied on the same facts.
Haag-Streit next argues that the lodestar amount should have been reduced because Imwalle
sought a total of $800,000 in compensatory, punitive, and liquidated damages, but the jury awarded
him only $185,000 in compensatory damages. It cites the Supreme Court’s decision in Farrar v.
Hobby, 506 U.S. 103 (1992), in support of its position. Farrar, however, is easily distinguishable
from the present case due to the nominal amount of damages awarded to the plaintiff in that case.
The Supreme Court reasoned as follows:
In some circumstances, even a plaintiff who formally “prevails” under § 1988 should
receive no attorney’s fees at all. A plaintiff who seeks compensatory damages but
receives no more than nominal damages is often such a prevailing party. As we have
held, a nominal damages award does render a plaintiff a prevailing party by allowing
him to vindicate his “absolute” right to procedural due process through enforcement
of a judgment against the defendant. In a civil rights suit for damages, however, the
awarding of nominal damages also highlights the plaintiff’s failure to prove actual,
compensable injury. Whatever the constitutional basis for substantive liability,
damages awarded in a § 1983 action must always be designed to compensate injuries
caused by the [constitutional] deprivation. When a plaintiff recovers only nominal
damages because of his failure to prove an essential element of his claim for
monetary relief, the only reasonable fee is usually no fee at all.
Farrar, 506 U.S. at 115 (internal citations and quotation marks omitted).
But this case is not like Farrar. Imwalle received far more than “nominal” compensatory
damages, which in Farrar totaled one dollar. See Farrar, 756 F.2d 1148, 1152 (5th Cir. 1985)
(remanding the case to the district court with an order to award the plaintiff nominal damages “not
No. 06-4619 Imwalle v. Reliance Medical Products, Inc. et al. Page 18
to exceed one dollar”). Here, Imwalle’s $185,000 compensatory damages award was based on the
jury’s finding that he was discharged in retaliation for making claims of discrimination. Unlike the
plaintiff in Farrar, Imwalle was able to prove an “actual, compensable injury.” See Farrar,
506 U.S. at 115.
Haag-Streit’s last argument is that “[o]nly the facts after May 22, 2003, when Imwalle first
complained about any alleged discrimination, were related to his successful retaliation claims.” This
assertion is not only puzzling, but disingenuous. Haag-Streit itself argued that the decision to
terminate Imwalle occurred before May 22, 2003 (when Imwalle’s attorney sent the letter alleging
age discrimination), and that Inabnit and Ott were justified in firing him due to the problems at
Moeller and the Reliance sales slump in 2001, both of which occurred well before May 22, 2003.
Indeed, both parties introduced substantial and highly relevant evidence predating May 22, 2003 in
support of their respective positions.
In sum, none of Haag-Streit’s arguments on the “limited success” issue have any merit. The
district court therefore did not abuse its discretion when it declined to reduce the lodestar amount
based on Imwalle’s failure to prevail on all of his claims.
III. CONCLUSION
For the reasons discussed above, we AFFIRM the judgment of the district court.