Tyler v. Union Oil Co of CA ( 2002 )

  •                 REVISED SEPTEMBER 16, 2002
                       FOR THE FIFTH CIRCUIT
                           No. 00-51112
                  Consolidated with No. 01-50479
    doing business as UNOCAL,
    doing business as UNOCAL,
               Appeals from the United States District Court
                     for the Western District of Texas
                              August 27, 2002
    Before KING, Chief Judge and GARWOOD and HIGGINBOTHAM, Circuit
    GARWOOD, Circuit Judge:
         These appeals and cross-appeals bring before us a variety of
    issues in this suit under the Age Discrimination in Employment Act
    (ADEA), 29 U.S.C. §§ 621 et seq., and the Fair Labor Standards Act
    (FLSA), 29 U.S.C. §§ 201 et seq.
         The plaintiffs, former employees of Union Oil Company of
    California (Unocal), filed this suit against Unocal on March 19,
    1998, alleging violations of the ADEA and the FLSA.   A jury trial
    was held on the ADEA claims.       On December 12, 1999, the jury
    returned a verdict in favor of all plaintiffs on their ADEA claims.
    Beginning on December 12, 1999, a bench trial was held on the FLSA
    claims.   On September 19, 2000, the district court granted in part
    and denied in part Unocal’s motion for judgment as a matter of law
    (JMOL) on the ADEA claims.      The court set aside the verdict in
    favor of plaintiff Jessie G. Price (Price) and rendered judgment
    for Unocal on Price’s claims.   It upheld the liability verdicts in
    favor of each of the other plaintiffs, but lowered the jury’s
    damage awards.    Also on September 19, 2000, the district court
    issued its ruling on the FLSA claims, ruling in favor of plaintiff
    Donald R. Powers (Powers) and against plaintiffs Price, M. Leon
    Earles (Earles), and Thomas Hough (Hough).
         The plaintiffs moved for an award of attorneys’ fees and
    expenses.   On May 11, 2001, the district court granted in part and
    denied in part that motion.
         Plaintiff Price appeals the JMOL in favor of Unocal on his
    ADEA claims.   Unocal appeals the judgments in favor of plaintiffs
    Donald Ray Tyler (Tyler), Powers, Earles, Hough, and David Burkett
    (Burkett) on their ADEA claims.    Plaintiffs Tyler, Powers, Earles,
    Hough, and Burkett cross-appeal the damage award and the judgment
    against Earles and Hough on their FLSA claims.       Unocal filed a
    separate appeal contesting the award of attorneys’ fees and costs.
    Plaintiffs cross-appealed the amount of the fees and costs award.
    The fees and costs appeal has been consolidated with the appeals on
    the merits.
         We affirm in part.    We vacate and remand as to the amount of
    liquidated damages.
                          Facts and Proceedings Below
         For clarity, this section is divided into sub-sections, some
    presenting facts generally relevant to the entire case, others
    specific to particular plaintiffs or issues.    Also for clarity,
    the following designations are used hereinafter: The Appellees
    will refer collectively to all the plaintiffs except Price (who
    was the only plaintiff to lose on all his claims at trial).     The
    Plaintiffs will refer collectively to all the plaintiffs,
    including Price.
    1. General Background Facts
         In late 1996, Unocal, an oil company, began a reorganization
    of its domestic operations in the lower forty-eight states.     The
    reorganization resulted in a new business unit, Spirit Energy 76
    (Spirit).   The reorganization involved a reduction in force (RIF)
    plan.   Under the RIF, employees who did not get positions in
    Spirit were eligible to be placed in a “redeployment pool” (the
    pool), from which Unocal could choose employees for available
    jobs.   Employees who were laid off and placed in the pool
    received, in addition to other benefits, salary for up to four
    months, depending on length of service.   The Plaintiffs were
    eligible to receive redeployment benefits and remain on Unocal’s
    payroll until April 30, 1997.   Employees could also opt to
    participate in Unocal’s Termination Allowance Plan (TAP), which
    provided termination pay for employees displaced by the RIF in
    exchange for signing a release that purported to waive
    permanently all potential claims against Unocal relating to the
    adverse employment decision.
         At the time of the RIF, the Plaintiffs were Unocal employees
    in the Permian Basin region in West Texas.   Their positions, ages
    at the time of the RIF, and their years of service at Unocal were
    as follows:    Price: Production Foreman over the Moss Unit, age
    fifty-five, thirty-three years;       Hough: Health, Environment &
    Safety (HES) Coordinator in Andrews, age fifty-five, twenty-four
    years; Earles: Production Technician in Andrews, age fifty-three,
    twenty-two years; Burkett: Senior General Clerk in Midland, age
    fifty-five, thirty-seven years; Powers: Production Clerk in
    Andrews, age fifty-five, thirty-four years; Tyler: Field
    Superintendent, age fifty-five, twenty-seven years.
           The Appellees all ended their job assignments with Unocal on
    December 31, 1996.    Price ended his assignment on January 15,
    1997.    Tyler and Hough were officially terminated on January 31,
    1997.    Burkett, Earles, Powers, and Price remained on the payroll
    until April 30, 1997.    Each plaintiff participated in the TAP
    and, after signing the required releases, received termination
           Jack Schanck, age forty-five, was made president of Spirit.
    As part of their attempt to show discriminatory animus, the
    Plaintiffs produced, inter alia, a memorandum from Schanck, dated
    March 14, 1996, which contained the following:
           “Keep in mind that although you may consider that less
           experienced employees may not currently have as much of
           an impact on the company as those at higher T C P
           levels, their performance may actually be superior, and
           they may have greater technical potential.”
    This memorandum was issued to managers and directed the forced
    ranking of employees prior to the RIF.   The Plaintiffs also
    pointed to excerpts from a letter written by Schanck to all
    employees in August 1996 which stated that Spirit Energy would be
    a “lean, quick-reacting organization” that would “not be
    constrained by an old Unocal way.”
         The Plaintiffs produced a Unocal policy manual that advised
    employees conducting a reorganization to ensure that plans
    “minimize the risk that personnel decisions can be viewed as
    being illegal employment discrimination” and that stressed the
    need to document non-discriminatory reasons for personnel
    decisions.   In connection with the 1996 reorganization, Larry
    Love, a Senior Resources Consultant at Unocal, prepared an
    adverse impact study of the proposed RIF (the Love analysis).
    The Love analysis showed that there was a possibility the RIF
    would have an adverse impact correlated with age.   Love submitted
    his analysis to Vice President of Human Resources Peter Vincent.
    2. Equitable Estoppel Issue Facts
         Texas is a “deferral” state (i.e., a state with a state law
    prohibiting age discrimination in employment and a state
    authority to grant or seek relief from such discriminatory
    practice, 29 U.S.C. §§ 626(d) and 633(b)).   Conaway v. Control
    Data Corp., 
    955 F.2d 358
    , 363 & n.3 (5th Cir. 1992).   Under the
    ADEA, in a deferral state the limitations period for filing an
    age discrimination charge with the EEOC is effectively 300 days.
    29 U.S.C. § 626(d).   Thus, a Texas employee’s ADEA claims are
    normally time-barred if the employee fails to file an age
    discrimination charge with the EEOC within 300 days from the date
    of the unlawful employment practice.    Plaintiffs Tyler, Powers,
    Price, Earles, and Hough filed their EEOC claims on March 9,
    1998; Burkett filed his on March 13, 1998.    The EEOC issued the
    Plaintiffs notices of right to sue on March 19, 1998, and the
    Plaintiffs filed their complaint on the same day.    The Plaintiffs
    do not dispute that their EEOC claims were filed outside the
    applicable 300 day window.    The district court held that
    equitable estoppel barred Unocal from asserting a limitations
    defense.   The district court had previously denied earlier (pre-
    verdict) motions by Unocal to dismiss the Plaintiffs’ claims as
         The Plaintiffs testified that they believed they had signed
    away all potential claims and rights under the ADEA when they
    signed their release forms.    Each of the Plaintiffs had signed a
    release form purporting to discharge Unocal from “all claims,
    liabilities, demands and causes of action” related directly or
    indirectly to the termination of employment.    Hough signed an
    older version of the form that did not contain a specific
    reference to the ADEA.   The other plaintiffs signed a newer
    version, drafted in 1996, that added a specific reference to the
    ADEA (the 1996 Release).   In 1990, the Older Workers Benefits
    Protection Act (OWBPA), 29 U.S.C. § 626(f), amended the ADEA.
    Under the OWBPA, for a release of ADEA claims to be effective,
    the release must meet certain requirements, including making
    specific mandatory disclosures.        Blakeney v. Lomas Info. Sys., 
    65 F.3d 482
    , 484 (5th Cir. 1995).    Richard Ettensohn, an in-house
    attorney for Unocal and an employment law specialist, testified
    that he had drafted the release language and that it did not
    comply with the OWBPA.   He admitted that the releases were not
    effective to release the Plaintiffs’ ADEA claims.       Unocal does
    not dispute that the releases were not effective as to ADEA
         Plaintiff Tyler testified that, in August or September 1997,
    he happened to discuss the release forms when he visited with an
    attorney on an unrelated matter.       The attorney suggested that
    Plaintiffs consult with an employment attorney to determine
    whether the releases were valid.       Plaintiffs met with an attorney
    to discuss the matter in early 1998 and discovered that the
    releases were not effective to release ADEA claims.       In March
    1998, on the attorney’s advice, they filed their EEOC charges.
         The issue whether Unocal’s conduct induced the Plaintiffs to
    refrain from filing their claims within the 300 day window was
    submitted to the jury, which found in the affirmative.       The
    district court found that the testimony given at trial was
    sufficient to support the jury’s finding.       According to the
    district court’s opinion in ruling on Unocal’s JMOL motion, the
    language of the releases would have misled most laymen to believe
    that they had released their ADEA claims and Unocal should have
    “unmistakably understood” that Plaintiffs would have been so
    misled.   Thus, the district court held that Unocal was equitably
    estopped from asserting the limitations defense.    Unocal appeals
    this ruling and argues that the ADEA claims of all Plaintiffs
    were time barred.
    3. The Plaintiffs’ Statistical Evidence
         At trial, the Plaintiffs offered expert statistical evidence
    from Dr. Blake Frank.   Dr. Frank’s expert testimony was presented
    to support an inference of motive for disparate treatment.
         Dr. Frank is an industrial/organizational psychologist.    He
    testified that his analysis showed that Unocal employees over age
    fifty were less likely to be promoted and more likely to be
    placed in the pool.   Dr. Frank also testified that his analysis
    showed that the relationship between superior performance
    evaluations and retention was statistically insignificant.
         Unocal challenged the admissibility of Dr. Frank’s testimony
    in a Daubert v. Merrell Dow Pharmaceuticals, 
    113 S. Ct. 2786
    (1993),   motion and in a motion in limine.   At the close of the
    Plaintiffs’ case and again after presentation of all the
    evidence, Unocal made Rule 50 motions for JMOL.    After the
    verdict was returned, Unocal filed its post-verdict JMOL motion.
    The district court considered Unocal’s objections and overruled
    them.    On appeal, Unocal challenges the court’s finding that this
    statistical evidence was admissible.
    4. Price
         Price appeals the district court’s holding, in its JMOL,
    that he did not prove that he suffered an adverse employment
    action.    Prior to the December 1996 RIF, Price was employed as a
    production foreman at Unocal’s South Cowden location known as the
    Moss Unit.    Don Umsted, age 39, served as production foreman at
    the North Cowden location.    During the RIF, Unocal consolidated
    these two locations into a single unit with a single production
    foreman.    In mid-December 1996, field superintendent Diane Van
    Deventer, Price’s supervisor, informed Price that Umsted had been
    chosen to be production foreman over the new combined unit.     She
    further informed Price that he had been reassigned to work as an
    HES coordinator, with the same salary and benefits.     Price had no
    previous formal experience in HES and asserts that he would have
    lost seniority and supervisory responsibility.1     Price expressed
    his dissatisfaction with the reassignment, but agreed to take the
    HES position.    Price testified that he was discouraged by the
    amount of training he needed for the new position.     After working
    for a few days, he resigned and asked for the redeployment
          In his brief, Price also asserts that he would have lost salary
    in the new position. But Price testified that he was told his salary
    would remain the same.
    package.    On his unemployment compensation form, Price noted that
    he “quit – I volunteered for a package and was accepted.”    Price
    testified that he viewed the reassignment as a deliberate attempt
    to humiliate him into quitting.
         Price produced evidence that, as production foreman, he had
    received positive evaluations from his supervisors, including Van
    Deventer.   The decision to name Umsted as the production foreman
    for the new combined unit was made by D.J. Ponville, Unocal’s new
    Onshore Operations Manager, with input from Van Deventer.    In
    November 1996, Ponville had chaired a meeting with field
    superintendents Van Deventer, Craig Van Horn, and Greg
    Leyendecker to discuss filling positions, including production
    foreman positions.   Ponville and other Unocal decision-makers
    testified that they made personnel decisions on factors other
    than age.   There was testimony that Van Deventer had made age-
    related remarks to Price and others on several occasions.2
    Evidence at trial, including Van Deventer’s own testimony,
    indicated that Van Deventer was heavily involved in personnel
          Plaintiff Earles testified that Van Deventer told him, in the
    mid 1990s, that “she didn’t think that anyone would be able to
    retire with Unocal at that point in time” and that he understood
    this to mean that Unocal would push senior employees into early
    retirement. Earles also testified that Van Deventer often referred
    to Price as “the old man” or a “senior citizen” and that she had
    referred to “the geriatric group”. Price also testified that she
    had referred to him as “the old man.” Powers testified that, when
    he asked Van Deventer whether she would be the office boss after
    the reorganization, she replied “You old son-of-a-bitch, your ass
    will be gone before that ever happens.”
         With regard to Price, the district court found that it did
    not need to consider Price’s evidence of discriminatory intent
    because Price had not suffered an adverse employment action.    He
    was not discharged.   He was transferred to a different position
    with the same salary and benefits and then voluntarily decided to
    resign rather than learn new skills.    The district court found
    that Price’s reassignment was the sort of business decision,
    typical in a reorganization, that the courts will not second
    5. Hough
         In the district court, Unocal asserted that plaintiff Hough
    did not suffer an adverse employment action and that he
    voluntarily elected to leave Unocal.    Unocal argued that Hough
    was offered a job and declined it.    Hough argued that any offer
    made to him was so vague and uncertain that it did not qualify as
    a real job offer.
         Hough was the Health, Environment, & Safety (HES)
    coordinator in South Andrews.    Hough testified that, on the
    morning of December 11, 1996, field superintendent Van Horn came
    to his office “to tell me that I would have a job with Unocal but
    it would no longer be in HES.”    Van Horn told Hough that he was
    uncertain as to what the job would be, how much it would pay, or
    where it would be located.   Van Horn said it was likely that it
    would be some type of technician job in Midland and pay less than
    Hough was earning as an HES coordinator.   Van Horn requested a
    decision by noon that day, but extended the deadline to two
    o’clock p.m.    That morning, Hough conferred with Steve Gregory,
    the head of HES at Unocal, about the availability of other HES
    positions.    Gregory informed him that none were available at that
    time, but he would be notified if one became available.    Hough
    testified that he ultimately declined Van Horn’s offer because of
    the uncertainty regarding what the job, salary, and location
    would be.    Hough was also concerned about losing a significant
    percentage of his retirement if he accepted the new position.
    Hough took the redeployment package instead.    Hough further
    testified that he felt he should have been offered the HES
    position that opened when Price left and that his former duties
    were assigned to a person he considered less qualified than
         The district court found that there was sufficient evidence
    to permit the jury to find that Van Horn did not actually make a
    firm employment offer to Hough.
    6. Earles
         Unocal asserted that plaintiff Earles also declined an offer
    of employment and thus did not suffer an adverse employment
         Earles was a production technician.   On November 19, 1996,
    Van Deventer notified Earles, by letter, that he was being placed
    in the redeployment pool.    The letter stated that he might still
    be offered a position, but that his continued employment was
    doubtful.    It said that Earles would be notified of a final
    decision by December 20, 1996.
           Earles testified that, at that time, he asked Van Deventer
    if she knew of any available positions and she said that she did
    not.    Earles spoke to Gary Dupriest, the South Permian Asset
    Manager, and told Dupriest that he had an offer from another
    company.    Earles asked Dupriest to level with him about his
    chances of being offered another position at Unocal and Dupriest
    advised him to try to find something outside of Unocal.
           Later, Van Horn contacted Earles by telephone.   Earles and
    Van Horn offered conflicting testimony about the conversation.
    Earles testified that Van Horn told him “That he didn’t really
    have anything to offer me, but if there was a job, and he wasn’t
    sure what it was going to be . . . it might be HES.”    According
    to Earles, Van Horn further said that any possible job would
    “almost certainly involve some salary compression” and Van Horn
    asked Earles if he would have any interest.    Van Horn demanded an
    answer before he hung up the telephone.    Van Horn testified that
    he did not want to make Earles ineligible for retirement benefits
    by making him a formal offer of employment before knowing whether
    Earles was interested in the new position, so he contacted Earles
    to gauge his interest.   Van Horn testified that he told Earles
    that an HES position was being vacated by Hough in Andrews and
    Van Horn asked Earles if he would be interested in the position
    if it were offered to him.   Van Horn testified that Earles asked
    only what the job entailed and where he would be located, and did
    not inquire into the salary.   According to Van Horn, Earles told
    him that he had a foreman position with another oil company and
    that he was not interested in the Unocal HES job.   Van Horn
    reported to Ponville that he did not extend a formal employment
    offer to Earles because Earles was not interested in the possible
         The district court determined that, since several witnesses
    testified almost no one was hired out of the redeployment pool,
    sufficient evidence was presented to allow the jury to conclude
    that placement in the pool constituted a discharge.   Unocal does
    not challenge that determination.    The court concluded that the
    jury could find that the phone call from Van Horn did not
    constitute a true offer of employment and that Earles, for all
    practical purposes, was terminated by being placed in the pool
    against his will.
    7. Burkett
         Unocal asserts that Burkett was terminated because of a good
    faith mistake, not because of age discrimination.
         Burkett was a senior general clerk in Midland with thirty-
    seven years of experience at Unocal.    In December 1996, Burkett
    was given the redeployment package.    Unocal does not dispute that
    Burkett suffered an adverse employment action, but argues that
    Ponville had a mistaken belief that Burkett wanted the package
    rather than reassignment.   Burkett contends that he made it clear
    to Ponville and other decision-makers that he wanted any job in
    the new Unocal organization.
         Burkett testified that, in November 1996, Ponville held a
    meeting of the clerical staff and told them that the RIF would
    reduce the number of clerical jobs in the organization.
    According to Burkett, Burkett then approached Van Deventer and
    told her that he would take any clerical position that was
    available.   On December 11, Ponville gave Burkett a redeployment
    package.   Burkett testified that he met with Dupriest after he
    received the package and told him that he needed a job and would
    take any position available.   Ponville, Dupriest, and Van
    Deventer all testified that they thought Burkett wanted the
    package rather than reassignment.
         Before December 11, Unocal had offered a clerical position
    to Tammy Kennedy, who turned it down.   According to Burkett,
    Unocal never offered this position to Burkett or to co-plaintiff
    Powers.    Burkett presented evidence that Unocal had retained four
    younger employees with less experience in the Permian Basin area
    – Tamara Powers (age 37), Amanda Armstrong (24), and Tina Carter
    (31).    The district court determined that this evidence was not
    probative of age discrimination because, although these employees
    were clearly younger and less experienced, there was insufficient
    evidence that they were actually less qualified that Burkett.
    Nevertheless, the court held that Burkett had presented
    sufficient evidence that Unocal’s mistake defense was a mere
    pretext for discrimination.
    8. Damages
           The district court reduced the back pay damages awarded by
    the jury.    The jury had not reduced the gross back pay amount
    awarded by the amount of the interim wages that the Appellees had
    earned since their employment with Unocal ended.    The Appellees
    conceded that this adjustment was appropriate and required by
    law.    The district court denied Unocal’s request to offset the
    damage awards by the amount of the termination allowances that
    the Appellees received in exchange for signing the releases.
    Unocal does not challenge that holding on appeal.
           The district court entered final judgment on September 19,
    2000.    The court extended the back pay period from the date the
    verdict was returned – December 21, 1999 – to May 25, 2000.      As
    of May 25, Unocal and Spirit ceased to exist in the Permian
    Basin.    Unocal’s Permian Basin assets were sold as part of a
    transaction that resulted in the creation of a new company, Pure
    Energy Resources, Inc. (Pure).    Unocal terminated all of its
    employees in the region on or before May 25, 2000.    According to
    Unocal, approximately thirty percent of those terminated were not
    hired into Pure.   Unocal admitted that it was possible that some
    or all of the Plaintiffs would have been hired by Pure if they
    had still been employed by Unocal.    The Appellees note that
    Unocal owns sixty-five percent of Pure and controls its board of
    directors.    The district court held a hearing and heard evidence
    regarding the cessation of Unocal’s operations and the creation
    of Pure.   The district court held that, because the Appellees
    would have been terminated by Unocal by May 25, that date was the
    appropriate cut-off date for the extension of back pay awards.
    The Appellees challenge this holding on appeal.
         The district court denied the Appellees’ request for front
    pay awards.   Reinstatement was not a feasible remedy since some
    of the Appellees’ positions were eliminated during the RIF and
    the rest were eliminated when Unocal ceased operations in the
    Permian Basin on May 25, 2000.   Thus, the district court found,
    any front pay award would be purely speculative and require the
    court to guess whether each plaintiff would have been hired by
    Pure.   The Appellees appeal the denial of front pay.
         The district court awarded each of the Appellees $2,500 in
    liquidated damages.   To receive liquidated damages under the
    ADEA, a plaintiff must prove that the violation was willful.     29
    U.S.C. § 626(b).   The district court found that there was
    sufficient evidence to support the jury finding that Unocal’s
    violations were willful.   Specifically, the court found that the
    evidence that Unocal ignored the in-house adverse impact study
    conducted by Love, the evidence of age-based remarks by Van
    Deventer, and the secrecy surrounding Unocal’s decision-making
    process were sufficient to permit the jury to infer willfulness.
    The district court found that, though this evidence of
    willfulness was sufficient, it was still sparse.   Thus the court
    limited the liquidated damages amount to $2,500 per Appellee.    On
    appeal, Unocal argues that there was insufficient evidence of
    willfulness and thus there should have been no liquidated damages
    award.   The Appellees argue that, once the district court had
    found the evidence sufficient to support a willfulness finding,
    liquidated damages were mandatory in an amount equal to the back
    pay award.
    9. FLSA Claims
         Plaintiffs Price, Hough, Earles, and Powers asserted FLSA
    claims for unpaid overtime compensation.   The district court
    severed these claims from the ADEA claims and held a bench trial
    on the FLSA claims.   The court found that production foreman
    Price, HES coordinator Hough, and production technician Earles
    all fell within the administrative exemption to the FLSA.   Under
    the administrative exemption, employees in “bona fide executive,
    administrative, or professional” positions are not statutorily
    entitled to overtime pay.   29 U.S.C. § 213(a)(1).   The district
    court found that plaintiff Powers, who worked as a production
    clerk, was non-exempt and thus entitled to an award of $7,700.32
    for unpaid overtime.   Unocal does not challenge the award to
    Powers, and Price does not challenge the determination that he
    was an exempt employee.   However, Hough and Earles each challenge
    the ruling that they were exempt employees.
    10. Attorneys’ Fees and Expenses
         In their motion for fees and expenses, the Plaintiffs
    requested $946,366.12 in attorneys’ fees.   They arrived at this
    figure as follows: $559,574.75 for 3,257.95 attorney hours billed
    at rates varying from $100 to $225 per hour plus $71,336.00 for
    1,115.20 hours of legal assistant work billed at rates from $30
    to $80 per hour yielded a sum of $630,910.75.    The Plaintiffs
    urged that this sum be enhanced by fifty percent, pursuant to the
    twelve factors listed in Johnson v. Georgia Hwy. Express, Inc.,
    488 F.2d 714
    , 717-19 (5th Cir. 1974), for a total lodestar amount
    of $946,366.12.   Unocal argued that the Johnson enhancement was
    improper and that fifteen percent of the Plaintiffs’ billing
    could be attributed to the unsuccessful claims.
         The district court found that the twelve Johnson factors did
    not warrant enhancement of the lodestar figure.    The court agreed
    with Unocal that a fifteen percent reduction was proper due to
    the limited nature of the Plaintiffs’ success.    The court
    accepted the Plaintiffs’ contention that the $630,910.75 figure
    already included about a ten percent reduction from the hours
    actually billed.   Reducing it by a further five percent, the
    court set the lodestar fee figure at $590,000.
         The court agreed with Unocal that the Plaintiffs could not
    recover $75,424.81 attributable to expert witness fees.   Thus the
    court awarded the Plaintiffs $45,841.94 in trial costs, rather
    than the $121,266.75 the Plaintiffs had requested.    The court
    also awarded the Plaintiffs their requested fees and costs for
    preparation of the motion and for anticipated appeal.   The total
    fees and costs award was $694,141.94.
         On appeal, Unocal argues that its successful appeal on the
    merits would render the Plaintiffs ineligible to recover any fees
    and, in the alternative, that the total fees and costs award set
    by the district court was appropriate.   The Plaintiffs ask this
    court to grant a delay enhancement and appeal the district
    court’s holding that expert witness fees are not recoverable.
    I.   Standards of Review
         Armendariz v. Pinkerton Tobacco Co., 
    58 F.3d 144
     (5th Cir.
    1995), describes the general standard of review for a JMOL when
    the defendant moved for JMOL both before and after the verdict:
         “[J]udgment as a matter of law is appropriate if the facts
         and inferences point so strongly and overwhelmingly in favor
         of one party that a reasonable jury could not have concluded
         that the ADEA was violated. A mere scintilla of evidence is
         insufficient to present a question for the jury. There must
         be a conflict in substantial evidence to create a jury
         question. . . . [T]he district court's judgment should be
         reversed only if the facts and accompanying inferences would
         not permit reasonable people to conclude that” the ADEA was
         violated. Id. at 148 - 49 (internal citations omitted).
    See also Boeing Co. v. Shipman, 
    411 F.2d 365
    , 374 - 75 (5th Cir.
    1969) (en banc); Fed. R. Civ. P. 50(a).
         “The district court's determination of attorney's fees is
    reviewed for abuse of discretion, and the findings of fact
    supporting the award are reviewed for clear error.”   Shipes v.
    Trinity Industries, 
    987 F.2d 311
    , 319 (5th Cir. 1993).
         Specific considerations related to the standard of review
    for particular questions arising in this appeal are noted below
    as appropriate.
    II. Equitable Estoppel
         Unocal challenges the district court’s holding that
    equitable estoppel saved the Plaintiffs’ ADEA claims from being
    time-barred.   We affirm the district court on this issue.
         There is no dispute that the Plaintiffs failed to file their
    discrimination charges with the EEOC within 300 days from the
    date of the allegedly unlawful employment practice and that their
    ADEA claims would be time-barred unless equitable estoppel or
    equitable tolling operated to save them.3
          Because Texas is a “deferral” state, see Conaway, 955 F.2d at
    363 & n.3, under the ADEA, the limitations period for filing an age
    discrimination charge with the EEOC is 300 days, 29 U.S.C. §
         “The EEOC filing requirement functions as a statute of
    limitations rather than a jurisdictional prerequisite. . . . The
    filing deadline is thus subject to equitable modification, i.e.
    tolling or estoppel, when necessary to effect the remedial
    purpose of ADEA.”    Rhodes v. Guiberson Oil Tools, 
    927 F.2d 876
    878 (5th Cir. 1991) (Rhodes I) (internal citations omitted).
    The doctrine of equitable estoppel “may properly be invoked when
    the employee's untimeliness in filing his charge results from
    either the employer's deliberate design to delay the filing or
    actions that the employer should unmistakably have understood
    would result in the employee's delay.”     Clark v. Restistoflex
    854 F.2d 762
    , 769 (5th Cir. 1988) (internal quotation marks
    omitted) (emphasis added).
         The equitable estoppel inquiry involves questions of fact
    and law.   Questions such as whether the employer misled the
    employee are questions of fact and determinations by the trier of
    fact are reviewed for clear error.     See Rhodes I, 927 F.2d at
    880; Clark, 854 F.2d at 769.   The applicability of equitable
    estoppel to the facts is a question of law that this court
    reviews de novo.    Rhodes I, 927 F.2d at 881.   Equitable estoppel
    “does not hinge on intentional misconduct on the defendant's
    part.   Rather, the issue is whether the defendant's conduct,
    innocent or not, reasonably induced the plaintiff not to file
    suit within the limitations period.”     McGregor v. Louisiana State
    Univ. Bd. of Supervisors, 
    3 F.3d 850
    , 865 - 66 (5th Cir. 1993).
         The district court correctly concluded that the evidence was
    sufficient to support the jury’s finding that Unocal’s conduct
    induced Plaintiffs from timely filing their claims.4    Ettensohn,
    an in-house attorney for Unocal and an employment law specialist,
    testified that he prepared the language used in the 1996 Release.
    He also testified to his belief that the releases signed by the
    Plaintiffs specifically referenced age discrimination claims.
    Ettersohn admitted that the releases were not actually effective
    to release the ADEA claims because they did not fully comply with
    the OWBPA’s requirements.   But the release language could easily
    suggest to a layman that all ADEA claims had been effectively
    waived.   They state affirmatively that Unocal is discharged from
    “all claims, liabilities, demands and causes of action.”    With
    the exception of the release signed by Hough, all the release
    forms specifically referenced the ADEA as one type of claim being
    released.   (The release signed by Hough expressly purported to
    release all claims, which would include ADEA claims.)    The
    Plaintiffs testified that they did in fact believe that they had
    signed away all potential claims and rights under the ADEA.
    Plaintiff Tyler testified that he only began to think otherwise
          The jury instruction on this issue were as follows: “For each
    of the following plaintiffs, do you find that the defendant’s
    conduct induced him to refrain from filing his claim with the EEOC
    within 300 days of the alleged unlawful practices?”       The jury
    answered “yes” with regard to each plaintiff.
    when he happened to mention the releases to an attorney in August
    or September 1997.   As the district court found, the evidence
    supported a finding that Unocal should have “unmistakably have
    understood,” that the releases would mislead the Plaintiffs in
    this way.5
    III. Admission of the Plaintiffs’ Statistical Evidence
         We apply an abuse of discretion standard when reviewing a
    trial court’s decision to admit or exclude expert testimony.
    Kumho Tire Co. Ltd. v. Carmichael, 
    119 S. Ct. 1167
    , 1176 (1999).
    The district court’s ruling will be sustained unless manifestly
    erroneous.    Boyd v. State Farm Ins. Cos., 
    158 F.3d 326
    , 331 (5th
    Cir. 1998).
         Unocal attacks the statistical evidence presented by Dr.
    Frank on five specific grounds: (1) the statistical groupings;
    (2) assumptions that terminations were involuntary; (3)
    unreliable data; (4) failure to control for factors other than
    age; (5) use of age as a continuous variable; and (6) Unocal’s
    own statistical analysis does not indicate discrimination.6
          The jury charge did not ask for a specific finding as to what
    Unocal “unmistakably understood.” But Unocal did not object to the
    form of the jury question on equitable estoppel.      The district
    court was entitled to make the finding on this issue in light of
    the jury’s finding that each plaintiff was induced from timely
    filing his claim. See Fed. R. Civ. P. 49(a).
          Unocal’s objections to the statistical evidence were adequately
    preserved. Among other things, the district court granted a running
    objection to Dr. Frank’s testimony.
         Under the abuse of discretion standard, the district court
    did not commit manifest error in admitting Dr. Frank’s testimony.
    As the district court noted, many of Unocal’s arguments go to the
    weight of Dr. Frank’s testimony rather than to its admissibility.
    Some of Unocal’s arguments are simply without merit.
         Unocal’s argument that Dr. Frank’s testimony should be
    excluded because his statistical groupings compared employees
    over fifty with those under fifty, rather than comparing those
    over forty with those under forty, is without merit.   Although
    the ADEA protects employees over the age of forty, this court and
    the Supreme Court have recognized that the relevant age groupings
    for a particular ADEA case will vary by the circumstances of the
    case.   See O’Connor v. Consolidated Coin Caterers Corp., 
    116 S. Ct. 1307
    , 1310 (1996) (fact that one person in the ADEA
    protected class has lost out to another person in the protected
    class is not determinative as long as the person lost out because
    of his age); Fields v. J.C. Penney Co., Inc., 
    968 F.2d 533
    , 536 &
    n.2 (5th Cir. 1992) (per curiam) (ADEA plaintiff may prove prima
    facie case by showing he was replaced by someone younger, even if
    replacement was within the protected class); Bienkowski v.
    American Airlines, Inc., 
    851 F.2d 1503
    , 1506 (5th Cir. 1988)
    (same).   In the instant case, each of the Plaintiffs was over age
    fifty at his termination and each plaintiff who was replaced was
    replaced with an employee under age fifty.
         Unocal’s argument that Dr. Frank improperly counted as
    “terminated” all employees who received the redeployment package
    is without merit.    There was sufficient evidence that almost no
    one who was placed in the redeployment pool was rehired and that
    placement in the pool was effectively equivalent to termination.
         Under the evidence here, Unocal’s objection that Dr. Frank
    created his own database, which was unreliable, goes to probative
    weight rather than to admissibility.    Dr. Frank compiled his
    database from documents provided by Unocal during discovery.
    Unocal did not show that Dr. Frank’s compilation of the data
    provided him was itself unreliable.    Cf. Munoz v. Orr, 
    200 F.3d 291
    , 301 (5th Cir. 2000) (“Both the determination of reliability
    itself and the factors taken into account are left to the
    discretion of the district court consistent with its gatekeeping
    function under Fed. R. Evid. 702.”).    Unocal instead attempts to
    show that the underlying data – provided by Unocal -- was itself
    unreliable.    This is an issue that Unocal could – and did – raise
    in cross-examination.
         Unocal asserts that Dr. Frank failed to control for factors
    other than age.    But Dr. Frank did control for other relevant
    variables.    Dr. Frank ran tests showing that the correlation
    between employee performance evaluations and retention was
    statistically insignificant.    Dr. Frank also controlled for
    geographical location by confining his analysis to the Permian
    Basin Asset Group.   Omission of variables may render an analysis
    less probative than it might otherwise be, but, absent some other
    infirmity, an analysis that accounts for the major factors will
    be admissible.    Bazemore v. Friday, 
    106 S. Ct. 3000
    , 3009 (1986)
    (Brennan, J., joined by all other members of the Court,
    concurring in part).
         Unocal criticizes Dr. Frank’s use of age as a continuous
    variable.    The tests run using age as a continuous variable were
    far from the only tests Dr. Frank performed on the data.       Cf.
    Koger v. Reno, 
    98 F.3d 631
    , 636 - 37 (D.C. Cir. 1996) (regression
    analysis that was the sole evidence presented in support of age
    discrimination and which used age as a continuous variable was
    not legally relevant).   Even if flawed, these tests do not render
    Dr. Frank’s entire analysis irrelevant.   Further, Dr. Frank
    verified that the ages of Unocal’s employees were normally
         Finally, Unocal asserts that its own statistical analysis,
    performed by Dr. Baxter, does not support an inference of
    discrimination.   The district court, acting within its
    discretion, found that Dr. Baxter’s opinion was not conclusive
    enough to discredit entirely Dr. Frank’s methodologies.     Cf.
    Daubert v. Merrell Dow Pharms., 
    113 S. Ct. 2786
    , 2795 (1993) (it
    is the trial judge’s function to ensure that expert testimony is
    reliable).   Given that finding, Dr. Baxter’s conflicting opinion
    goes to the weight of Dr. Frank’s testimony, not its
         The district court did not abuse its discretion by admitting
    Dr. Frank’s statistical evidence.
    IV. Price’s ADEA Claim
         We agree with the district court that Price did not produce
    sufficient evidence of an adverse employment action to support
    the jury’s award of damages on his ADEA claim.
         The district court held that Price “did not establish a
    prima facie case.”    Price relies on several cases, e.g., U.S.
    Postal Service Bd. of Govs. v. Aikens, 
    103 S. Ct. 1478
    Russell v. McKinney Hospital Venture, 
    235 F.3d 219
     (5th Cir.
    2001), to argue that the prima facie case is no longer relevant
    after a case has gone to the jury.    These cases on which Price
    relies are distinguishable because they involved elements of the
    prima facie case that went to proving discrimination, not injury.
    Aikens, 103 S.Ct. at 1481 (ultimate question was discrimination
    vel non); Russell, 235 F.3d at 224 (issue was plaintiff’s proof
    of discrimination).   The McDonnell Douglas evidentiary framework
    is primarily concerned with the plaintiff’s initial burden when
    attempting to prove discrimination by circumstantial evidence.
    Reeves v. Sanderson Plumbing Prods., Inc., 
    120 S. Ct. 2097
    , 2105
    (2000).   A plaintiff who proves discrimination must still prove
    injury to recover damages.    Armstrong v. Turner Indus., 
    141 F.3d 29
    554, 560 (5th Cir. 1998) (to recover, a discrimination plaintiff
    will have to prove a cognizable injury, usually an adverse
    employment decision).
         It is clear from the district court’s discussion that the
    district court found that the employment actions Price
    established – his transfer and subsequent resignation – did not
    amount to adverse employment action.   Adverse employment action
    is part of the prima facie showing in an ADEA case because that
    is normally an element that the plaintiff will have to prove in
    order to receive a remedy under the ADEA.    See 29 U.S.C. §
    623(a)(1) (under ADEA, it is unlawful for employer “to fail or
    refuse to hire or to discharge any individual or otherwise
    discriminate against any individual” because of age); Armstrong,
    141 F.3d at 560.   The money damages awarded to Price by the jury
    verdict were compensatory damages for the loss of his job with
    Unocal.   To support this verdict, Price had to prove that his
    termination was a cognizable injury caused by the age
    discrimination.    See Armstrong, 141 F.3d at 562 (when plaintiff
    did not identify any cognizable and compensable injury caused by
    the allegedly discriminatory act, he could not recover).
         When, as here, a plaintiff resigned, he may satisfy the
    injury element by proving constructive discharge.    See Faruki v.
    Parsons S.I.P., Inc., 
    123 F.3d 315
    , 319 (5th Cir. 1997).     Because
    Price was transferred to another position and then resigned, a
    constructive discharge analysis is appropriate for determining
    whether Price suffered an adverse employment action.   Price did
    not request a constructive discharge jury instruction and Price
    did not produce evidence sufficient to support an implied finding
    of constructive discharge.
         “To prove constructive discharge, a plaintiff must establish
    that working conditions were so intolerable that a reasonable
    employee would feel compelled to resign.”    Id.
         “Stated more simply, [the plaintiff’s] resignation must
         have been reasonable under all the circumstances.
         Whether a reasonable employee would feel compelled to
         resign depends on the facts of each case, but we
         consider the following factors relevant, singly or in
         combination: (1) demotion; (2) reduction in salary; (3)
         reduction in job responsibilities; (4) reassignment to
         menial or degrading work; (5) reassignment to work
         under a younger supervisor; (6) badgering, harassment,
         or humiliation by the employer calculated to encourage
         the employee's resignation; or (7) offers of early
         retirement on terms that would make the employee worse
         off whether the offer was accepted or not.” Barrows v.
         New Orleans S.S. Ass’n., 
    10 F.3d 292
    , 297 (5th Cir.
         Price did not produce evidence that his transfer from
    production foreman to HES coordinator created conditions so
    intolerable that a reasonable employee would feel compelled to
    resign.    Price testified that the HES job was to be at the same
    salary.7   Although Price asserts that the HES job was a demotion,
           On appeal, Price asserts that he would have lost salary.
    However, Price testified that he understood “[t]he salary was to be
    the same.” He went on to state, “I also felt like that I probably
    wouldn’t get any more raises.” Price offered no testimonial or
    other evidence to prove that his salary was lower or that his
    there was no evidence presented sufficient for a jury to reach
    this conclusion.     Cf. Sharp v. City of Houston, 
    164 F.3d 923
    , 933
    (5th Cir. 1999) (transfer may be a demotion if the new position
    proves objectively worse).    The HES job was not menial or
    degrading.   Hough, Price’s co-plaintiff and a former HES
    coordinator, provided testimony suggesting that the
    responsibilities of an HES coordinator, though different in kind
    from those of a production foreman, were at least comparable in
    degree.   Hough testified that he worked as a production foreman
    from 1979 to 1990.    He then moved over to work in HES.   Hough
    testified, “[B]eing an HES is quite different than being a
    production foreman.    Grant you, a production foreman has to know
    a lot of things as far as regulations of environmental laws and
    safety regulations, but being responsible for all the individuals
    in the area where you work, it’s a whole lot different.”      There
    is no evidence that Price’s new position was objectively worse
    than his old one.
         Although Price testified that Van Deventer made age-based
    comments to him at various times, there was no evidence of
    anything approaching “badgering” during the HES job.    Price was
    not specific regarding the dates of Van Deventer’s comments, so
    it cannot be simply assumed that they occurred during the HES
    concern about a lack of future raises was anything but speculative.
    job, which Price only held for a few days.   The only evidence
    Price presented that the HES job was intolerable was his
    testimony as to his subjective belief that he was set up to fail
    in this job which would require him to get new training.   That
    does not meet the objective “reasonable employee” standard
    articulated in Barrows.   See Guthrie v. J.C. Penney Co., Inc.,
    803 F.2d 202
    , 207 (5th Cir. 1986).
         We affirm the district court’s holding that the evidence did
    not support an award of damages to Price.
    V.   The Appellees’ ADEA Claims
         With regard to plaintiffs Hough, Earles, and Burkett,
    Unocal’s argument asserts particularized non-discriminatory
    reasons for their terminations: Unocal asserts that Hough and
    Earles were offered new jobs and voluntarily chose to take the
    severance package instead and that Burkett was placed in the
    redeployment pool because of a good faith mistake.    Unocal argues
    that there was insufficient evidence to prove that these three
    plaintiffs were discriminated against based on age.   Unocal’s
    arguments regarding Hough and Earles also raise issues as to
    whether they actually suffered adverse employment actions.
         A. Sufficiency of Discrimination Evidence
         When the defendant employer comes forward with evidence of a
    legitimate, non-discriminatory reason for an adverse employment
    action, the presumption of discrimination raised by the
    plaintiff’s prima facie case drops out and the plaintiff may
    attempt to prove discrimination by offering evidence that the
    employer’s stated reason is pretextual.     Reeves, 120 S.Ct. at
    2106.   The burden of persuasion at all times remains on the
    plaintiff.   Id.    In a disparate treatment case, such as the case
    at bar, a plaintiff must produce sufficient evidence to rebut a
    showing by the employer that there was a legitimate, non-
    discriminatory reason for discharging a particular employee.        See
    Bauer v.   Albemarle Corp., 
    169 F.3d 962
    , 968 (5th Cir. 1999).      In
    the instant case, Hough, Earles and Burkett produced sufficient
    evidence for a reasonable jury to conclude that Unocal’s asserted
    reasons were pretextual and that the real reason was intentional,
    age-based discrimination.     See Reeves, 120 S.Ct. at 2109 (“[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
         In November 1996, Ponville, Unocal’s new Onshore Operations
    Manager, chaired a several-hour long meeting with field
    superintendents Van Deventer, Van Horn, and Leyendecker at which
    decisions affecting the Plaintiffs were made.    All four of the
    meeting participants were in their thirties.    Although Ponville
    testified that he did not really know any of the Plaintiffs
    except Tyler,8 he asserted generally that employment decisions
    about who would fill the positions in the reorganized business
    unit were based on employee performance.
         Van Horn testified that he did not recall any discussion
    regarding any of the Plaintiffs at the November meeting.        In her
    testimony, Van Deventer acknowledged that she participated in the
    meeting but was not asked to go into detail with regard to
    discussions at the meeting.     Ponville admitted that he did not
    retain any documentation reflecting reasons for employment
    decisions resulting from the meeting.
         With the exception of Tyler, Ponville did not state any
    specific performance-based reasons why any of the individual
    Plaintiffs were not assigned positions in the reorganized unit.
    With regard to Tyler, Ponville provided some specific comparisons
    between Tyler’s performance as a field superintendent and that of
    Van Horn, Van Deventer, and Leyendecker.9      Ponville admitted that
          Ponville testified that he had seen Burkett in the office and that
    he may have participated in a meeting with Hough.
          In its reply brief, Unocal argues for the first time that there
    was insufficient evidence of age discrimination against Tyler. Unocal
    Red Brief at 46. In its initial brief to this court, Unocal’s only
    assignments of error with respect to the judgment in favor of Tyler were
    the claims that the entire suit was time-barred and that, in the
    alternative, there was insufficient evidence to support the willfulness
    finding. Only for Hough, Earles, and Burkett did Unocal initially
    assert that there was conclusive evidence of legitimate, non-
    discriminatory reasons for the adverse employment actions. Unocal’s
    argument that Tyler did not prove age discrimination came too late.
    “This Court will not consider a claim raised for the first time in
    a reply brief.” Yohey v. Collins, 
    985 F.2d 222
    , 225 (5th Cir. 1993).
    Tyler was ranked ahead of Van Horn in the forced ranking and that
    Ponville had never reviewed Tyler’s performance appraisals in
    detail or spoken with Tyler’s supervisors about Tyler.   Following
    the meeting, four former field superintendent positions were
    consolidated into three positions, which were filled by Van Horn,
    Van Deventer, and Leyendecker.   Van Horn took over the field that
    had previously been under Tyler.
         As evidence of Unocal’s policies, the Plaintiffs proffered
    Unocal’s Human Resources Policies and Procedures manual.    The
    manual included, inter alia, a statement that “planning [for a
    RIF] should include . . . Documentation of non-discriminatory
    reasons for adverse personnel decisions.”   Ponville testified
    that he was aware that Unocal policy called for keeping such
    documentation.   Ponville admitted that, the policy
    notwithstanding, he failed to keep documentation of non-
    discriminatory reasons for adverse decisions.   Ponville shredded
    whatever documentation he had.   Ponville further conceded that
    the human resources department would have no way of knowing the
    reasons for the adverse personnel decisions.
         An employer’s conscious, unexplained departure from its
    usual polices and procedures when conducting a RIF may in
    appropriate circumstances support an inference of age
    discrimination if the plaintiff establishes some nexus between
    employment actions and the plaintiff’s age.   See EEOC v. Texas
    100 F.3d 1173
    , 1182 (5th Cir. 1996); Moore v. Eli
    Lilly Co., 
    990 F.2d 812
    , 819 (5th Cir.), cert. denied, 
    114 S. Ct. 467
     (1993).   Here, such a nexus was established.   Ponville
    testified that he based his decisions on performance, yet he
    testified that he was not familiar with Hough, Earles and Burkett
    and their job performance.   Hough, Earles and Burkett introduced
    evidence that they had received positive performance appraisals
    in recent years.   Cf. Risher v. Aldridge, 
    889 F.2d 592
    , 598 - 98
    (5th Cir. 1989) (plaintiff failed to allege a nexus with failure
    to consider written performance appraisals when employer
    explained why the written appraisals were unreliable and that
    decision-maker was personally familiar with plaintiff’s
    performance).   Ponville knew that he was supposed to keep
    documentation of the reasons for adverse employment decisions,
    yet he did not do so.
         Hough, Earles and Burkett’s evidence of satisfactory
    performance, Ponville’s failure to keep documentation and his
    admission that he was not familiar with Hough, Earles and Burkett
    and their job performance, were sufficient to permit an inference
    that the performance rationale was a pretext for intentional
    discrimination in the conduct of the RIF.   But, Hough, Earles,
    and Burkett still had to rebut Unocal’s evidence of
    particularized, non-discriminatory reasons for their discharges.
           B. Hough and Earles
           With regard to Hough and Earles, Unocal’s position is that
    each of these plaintiffs chose the termination package after they
    were approached by Van Horn about whether they were interested in
    reassignment and expressed to Van Horn that they were not
    interested.    The testimony concerning the conversations with Van
    Horn conflicted.    Both Hough and Earles testified that, in their
    respective conversations with Van Horn, Van Horn was vague as to
    what the new positions would entail and what they would pay.
    According to these plaintiffs’ testimony, the only thing Van Horn
    was certain about was that the new jobs would likely pay less
    than their old jobs.    Hough did indicate that Van Horn definitely
    said that he would have a job.    Earles testified that Van Horn
    told him that there was only a possibility that he would have a
    job.    Van Horn demanded to know whether Earles was interested
    before he hung up the telephone.      Hough testified that Van Horn
    demanded an answer within a few hours, even though Van Horn could
    not tell Hough what or where the job would be.
           The jury could reasonably have chosen to believe the
    plaintiffs’ version of the Van Horn conversations and could infer
    that any “job offers” were so indefinite that they were not bona
    fide and did not present Hough or Earles with a real choice
    between accepting termination or continued employment.     Unocal
    does not dispute that, at least, new jobs for these plaintiffs
    would have involved salary compression.   An act affecting
    compensation is itself a type of adverse employment action that
    is actionable in a discrimination case.    See Mattern v. Eastman
    Kodak Co., 
    104 F.3d 702
    , 707 (5th Cir. 1997).    The testimony that
    Van Horn pressured these plaintiffs to make quick decisions about
    these questionable uncertain job “offers” was bolstered by
    Earles’s testimony that Van Deventer had admitted that Unocal had
    such a practice of pressuring older employees into early
    retirement.    Cf. Guthrie v. J.C. Penney Co., 
    803 F.3d 202
    , 208
    (5th Cir. 1986) (jury could infer that repeated inquiries about
    plaintiff’s retirement plans were intentional harassment).
         The jury could rationally infer that Hough and Earles
    suffered adverse employment actions because evidence was
    presented that these plaintiffs were not extended bona fide
    offers but were offered only a “choice” between uncertain
    continued employment, in unspecified jobs at unspecified but
    lower pay, and accepting termination benefits.   We affirm the
    district court’s holding in favor of Hough and Earles on their
    ADEA claims.
         C. Burkett
         With regard to Burkett, Unocal asserts that it gave him the
    redeployment package because of a good faith mistaken belief that
    he desired the redeployment package rather than reassignment to
    another job.   Burkett testified that, after a meeting about the
    RIF and before his redeployment, he told Van Deventer that he
    would accept any job.    He further testified that right after he
    got his redeployment package, he met with Dupriest and said that
    he would take any available job.      The jury was entitled to
    believe Burkett’s testimony and to infer that Unocal’s decision-
    makers were on notice that Burkett wanted to keep working.       We
    affirm the district court’s judgment in favor of Burkett on his
    ADEA claim.
    VI. Liquidated Damages
         The district court awarded $2,500 in liquidated damages to
    each of the Appellees.    Unocal argues that the evidence was
    insufficient to support the finding of willful discrimination
    that is necessary for a liquidated damages award under the ADEA.
    The Appellees argue that, once there is a finding of willfulness,
    the ADEA mandates liquidated damages in an amount that doubles
    the back pay award.
         A. Willfulness
         Under the ADEA, liquidated damages are only payable for
    “willful” violations.    29 U.S.C. § 626(b).    A violation is
    willful “if the employer knew or showed reckless disregard for
    the matter of whether its conduct was prohibited by the ADEA.”
    Hazen Paper Co. v. Biggins, 
    113 S. Ct. 1701
    , 1708 (1993) (quoting
    Trans World Airlines, Inc. v. Thurston, 
    105 S. Ct. 613
    , 624
    (1985)).   An employer who knowingly relies on age in reaching a
    decision does not invariably commit a knowing and reckless ADEA
    violation.     Id.   “If an employer incorrectly but in good faith
    and nonrecklessly believes that the statute permits a particular
    age-based decision, then liquidated damages should not be
    imposed.”    Id. at 1709.10   The district court found that there
    was sufficient evidence to support the jury’s finding of
    willfulness.    We affirm this holding.
         A finding of willfulness does not require a showing that the
    employer’s conduct was “outrageous.”       Id. at 1710.   We have
    upheld jury findings of willfulness when a jury’s finding of
    intentional violation of the ADEA necessarily implied a finding
    that the employer’s proffered explanation for the adverse
    employment action was pretextual.       See Burns v. Tex. City
    Refining, Inc., 
    890 F.2d 747
    , 751 - 52 (5th Cir. 1989); Powell v.
    Rockwell Int'l Corp., 
    788 F.2d 279
    , 288 (5th Cir. 1986); but see
    Russell, 235 F.3d at 230 (plaintiff’s evidence of ADEA violation
    was not sufficient to support willfulness finding) (we conclude
    that the willfulness evidence here is materially stronger than
    that in Russell).     Ettensohn’s testimony and the policy manual
    make it clear that Unocal was aware that the ADEA applied to the
    implementation of the RIF and Unocal does not claim that it
          For example, the employer may in good faith but mistakenly
    believe that an exemption permitting an age-based decision applied. See
    Hazen Paper, 113 S.Ct. at 1708.
    believed any exemption applied permitting it to make age-based
    decisions as to the Appellees.    Unocal’s proffered explanation
    for the employment decisions made during the RIF was that the
    decisions were premised on a forced ranking based on performance.
    Yet Ponville, the primary decision-maker, testified that he was
    not personally familiar with the performance of Earles, Hough or
    Burkett.   The Appellees presented evidence of their satisfactory
    performance records.   Ponville destroyed all documentation
    relating to the adverse employment decisions, although Unocal
    policy called for retention of a record of non-discriminatory
    reasons for such decisions.    This and the other evidence
    discussed above suffices to support the jury’s finding that
    Unocal knew or showed reckless disregard for whether its conduct
    violated the ADEA.
    B. Amount of Liquidated Damages
         We must now consider whether the finding of willfulness
    necessitated a mandatory liquidated damages award equal to the
    amount of the back pay award.    We hold that it does.
         The ADEA statute provides for liquidated damages by means of
    cross-reference to the FLSA.     See 29 U.S.C. § 626 (b) (providing
    that ADEA remedies shall be enforced in accordance with, inter
    alia, 29 U.S.C. § 216 and that back pay under ADEA is treated as
    unpaid minimum wages and overtime compensation for purposes of
    applying FLSA provisions); 29 U.S.C. § 216(b) (employers who
    violate minimum wage and overtime compensation provisions of FLSA
    shall be liable for the back pay “and in an additional equal
    amount as liquidated damages”).11
          29 U.S.C. § 626(b) provides in full:
         “(b) Enforcement; prohibition of age discrimination under
         fair labor standards; unpaid minimum wages and unpaid
         overtime compensation; liquidated damages; judicial
         relief; conciliation, conference, and persuasion.
         The provisions of this title shall be enforced in
         accordance with the powers, remedies, and procedures
         provided in sections 211(b), 216 (except for subsection
         (a) thereof), and 217 of this title, and subsection (c)
         of this section. Any act prohibited under section 623 of
         this title shall be deemed to be a prohibited act under
         section 215 of title. Amounts owing to a person as a
         result of a violation of this chapter shall be deemed to
         be unpaid minimum wages or unpaid overtime compensation
         for purposes of sections 216 and 217 of this title:
         Provided, That liquidated damages shall be payable only
         in cases of willful violations of this chapter. In any
         action brought to enforce this chapter the court shall
         have jurisdiction to grant such legal or equitable relief
         as may be appropriate to effectuate the purposes of this
         chapter,   including    without   limitation    judgments
         compelling employment, reinstatement or promotion, or
         enforcing the liability for amounts deemed to be unpaid
         minimum wages or unpaid overtime compensation under this
         section. Before instituting any action under this
         section, the Equal Employment Opportunity Commission
         shall attempt to eliminate the discriminatory practice or
         practices alleged, and to effect voluntary compliance
         with the requirements of this chapter through informal
         methods of conciliation, conference, and persuasion.”
         29 U.S.C. 216(b) provides:
         “Damages; right of action; attorney's fees and costs;
         termination of right of action
         Any employer who violates the provisions of section 206
         or section 207 of this title shall be liable to the
         employee or employees affected in the amount of their
         unpaid   minimum  wages,   or  their   unpaid  overtime
         compensation, as the case may be, and in an additional
         equal amount as liquidated damages. Any employer who
         This circuit has never ruled on the precise question posed
    by this case – whether the ADEA mandates an award of liquidated
    damages in an amount equal to the back pay award upon a finding
    of willfulness.12   In Thurston, the Supreme Court assumed that
         violates the provisions of section 215(a)(3) of this
         title shall be liable for such legal or equitable relief
         as may be appropriate to effectuate the purposes of
         section 215(a)(3) of this title, including without
         limitation employment, reinstatement, promotion, and the
         payment of wages lost and an additional equal amount as
         liquidated damages. An action to recover the liability
         prescribed in either of the preceding sentences may be
         maintained against any employer (including a public
         agency) in any Federal or State court of competent
         jurisdiction by any one or more employees for and in
         behalf of himself or themselves and other employees
         similarly situated. No employee shall be a party
         plaintiff to any such action unless he gives his consent
         in writing to become such a party and such consent is
         filed in the court in which such action is brought. The
         court in such action shall, in addition to any judgment
         awarded to the plaintiff or plaintiffs, allow a
         reasonable attorney's fee to be paid by the defendant,
         and costs of the action. The right provided by this
         subsection to bring an action by or on behalf of any
         employee, and the right of any employee to become a party
         plaintiff to any such action, shall terminate upon the
         filing of a complaint by the Secretary of Labor in an
         action under section 217 of this title in which (1)
         restraint is sought of any further delay in the payment
         of unpaid minimum wages, or the amount of unpaid overtime
         compensation, as the case may be, owing to such employee
         under section 206 or section 207 of this title by an
         employer liable therefor under the provisions of this
         subsection or (2) legal or equitable relief is sought as
         a result of alleged violations of section 215(a)(3). “
          In at least two post-Thurston cases, we have commented on the
    issue in dicta. See Smith v. Berry Co., 
    165 F.3d 390
    , 395 (5th Cir.
    1999) (“[L]iquidated damages may not exceed the back pay award.
    That is, a finding of willfulness can double the damages awarded to
    the double recovery was required after any finding of
    willfulness.   See Thurston, 105 S.Ct. at 625 (observing that too
    broad a standard for willfulness “would result in an award of
    double damages in almost every case”).        In at least one post-
    Thurston decision, this court has assumed the same thing.        Burns
    v. Texas City Refining, 
    890 F.2d 747
    , 752 (5th Cir. 1989)
    (“Pursuant to 29 U.S.C. § 626(b), a finding of willfulness
    entitles the plaintiff to a doubling of any back pay award.”
    (emphasis added)). A majority of our sister circuits have
    expressly held or have assumed that double damages were mandatory
    after a finding of willfulness:         Four circuits have expressly
    held that this is the case.     Mathis v. Phillips Chevrolet, Inc.,
    269 F.3d 771
    , 777 (7th Cir. 2001); Greene v. Safeway Stores,
    210 F.3d 1237
    , 1246 (10th Cir. 2000); Spencer v. Stuart
    Hall Co., Inc., 
    173 F.3d 1124
    , 1129 (8th Cir. 1999); Hill v.
    a successful ADEA plaintiff.” (emphasis added)); Purcell v. Seguin
    State Bank & Trust Co., 
    999 F.2d 950
    , 956 (5th Cir. 1993) (“[E]ven
    when the plaintiff has proved willfulness, the court has discretion
    about whether to award liquidated damages.”). The precise issue we
    decide today was not necessary to the decision of either case. In
    Smith, the district court had awarded double damages and the
    appellate court affirmed the willfulness finding and the damage
    award. Id. at 395. In Purcell, there was no evidence supporting
    the willfulness finding, so no liquidated damages were awarded.
    Id. at 958.    The dicta in Purcell can be further distinguished
    because it relied for support on the pre-Thurston case of Elliot v.
    Group Medical & Surgical Service, 74 F2d 556, 558 (5th Cir. 1983), which
    in turn relied on Hays v. Republic Steel Corp., 
    531 F.2d 1307
     (5th Cir.
    1976). Hays was expressly disapproved in Thurston. Thurston, 105 S.Ct.
    at 625 n.22.
    Spiegel, Inc., 
    708 F.2d 233
    , 238 (6th Cir. 1983).       Three circuits
    have at least assumed that it was so.      See McGinty v. State, 
    193 F.3d 64
    , 71 & n.6 (2d Cir. 1999); Starceski v. Westinghouse Elec.
    54 F.3d 1089
    , 1099 (3d Cir. 1995) (“ADEA provides double
    damages when the employer's discriminatory conduct is willful”);
    Biggins v. Hazen Paper Co., 
    953 F.2d 1405
    , 1416 (1st Cir. 1992),
    vacated on other grounds, 
    113 S. Ct. 1701
         We hold that the plain language of the statutes requires the
    interpretation that liquidated damages in an amount equal to the
    back pay award are mandatory upon a finding of willfulness.14
    Accordingly, we remand this portion of the case to the district
          A case from the Eleventh Circuit seems to have assumed that
    a willfulness finding “entitles” the plaintiff to liquidated
    damages, but did not address whether double recovery was a
    mandatory amount.   Day v. Liberty Nat. Life Ins. Co., 
    122 F.3d 1012
    , 1016 (11th Cir. 1997).     Cases from the Fourth and Ninth
    Circuits seem to have assumed that liquidated damages were
    permitted, but perhaps not mandatory, after a finding of
    willfulness. Herold v. Hajoca Corp., 
    864 F.2d 317
    , 323 (4th Cir.
    1998) (plaintiff “may recover” liquidated damages); AARP v. Farmers
    Group, Inc., 
    943 F.2d 996
    , 1006 (9th Cir. 1991) (statute
    “authorizes” liquidated damages).
           This conclusion is further bolstered by 29 U.S.C. § 260, which
    provides an employer with a “good faith” defense under the FLSA. In an
    FLSA case, the liquidated damages provided for in 29 U.S.C. § 216(b) are
    mandatory unless the employer satisfies the requirements for the good
    faith defense, in which case 29 U.S.C. § 260 expressly provides the
    district court with discretion to award no liquidated damages or to
    award such damages in an amount not to exceed the amount provided for
    in § 216(b). 29 U.S.C. § 216(b); Mireles v. Frio Foods, Inc., 
    899 F.2d 1407
    , 1414 - 15 & n.8 (5th Cir. 1990). But “the ADEA does not
    incorporate [29 U.S.C. § 260].” Thurston, 105 S.Ct. at 625 n.22. Thus,
    there is no provision in the ADEA for discretion in the award of
    liquidated damages once a willfulness finding has been made.
    court with instructions to enter judgment awarding liquidated
    damages in an amount equal to the back pay award for each of the
    VII. Compensatory Damages – Back Pay and Front Pay
         In reviewing a district court’s damage award, this court
    reviews all issues of law de novo.     Rhodes v. Guiberson Oil Tools
    82 F.3d 615
    , 620 (5th Cir. 1996) (Rhodes II).     “Absent an
    error of law, a district court's award of compensatory damages
    presents an issue of fact, subject to the clearly erroneous
    standard of review.”   Id.    If the district court’s factual
    findings are plausible in light of the evidence presented, this
    court will not reverse its decision even if this court would have
    reached a different conclusion.     Patterson v. P.H.P. Healthcare
    90 F.3d 927
    , 936 (5th Cir. 1996).
         The Appellees, on their cross-appeal, challenge the district
    court’s limitation of the back pay award to compensation through
    May 25, 2000 – the date Unocal/Spirit’s Permian Basin operation
    ceased to exist – rather than through September 29, 2000 – the
    date of the final judgment.    The Appellees also appeal the
    district court’s denial of a front pay award.
         A. Backpay
         The purpose of ADEA back pay compensation is to restore the
    plaintiff to the position he would have been in absent the
    discrimination.   McKennon v. Nashville Banner Public Co., 115
    47 S. Ct. 879
    , 886 (1995).    The purpose is not to restore a plaintiff
    to a better position than he would have been in.     Cf. id.
    (compensatory principle is difficult to apply when there is
    after-acquired evidence of plaintiff’s wrongdoing that would have
    led the employer to terminate plaintiff anyway for a legitimate
    reason).   As a matter of law, the district court did not err in
    finding that it could award back pay for some period less than
    the entire time up to the date of the judgment.     Cf. Brunneman v.
    Terra Intern. Inc., 
    975 F.2d 175
    , n.5 (5th Cir. 1992) (affirming
    jury award of back pay up to date of judgment, but not suggesting
    such an award was mandatory).
         The determination of the proper period for awarding back pay
    is a factual matter that should be set aside only if clearly
    erroneous.    Id.   In the instant case, the district court’s
    conclusion that back pay should only be awarded through the May
    25, 2000 cessation of Unocal/Spirit’s operation was not clearly
    erroneous.    Cf. McKennon, 115 S.Ct. at 361 (in awarding back pay,
    district court can take account of “factual permutations” in the
    particular case).    The factual finding that the business entity
    that employed the Appellees ceased to exist on May 25 is
    undisputed.   Even absent discrimination, the Appellees would no
    longer be employed by Unocal and would not have received wages.
    The Appellees argue, however, that Pure was the alter ego of
    Unocal.    They emphasize that Unocal was the majority shareholder
    in Pure and controlled Pure’s board of directors and that about
    seventy percent of Spirit employees moved to Pure.      But the
    district court heard the evidence concerning the sale of Unocal’s
    operations to Pure and impliedly found that Pure was not Unocal’s
    alter ego or agent.      The Appellees’ assertions do not, without
    more, demonstrate that the district court’s finding was clearly
           We decline to disturb the district court’s award of back
           B. Front pay
           Front pay is an equitable remedy that is normally employed
    when the ADEA’s preferred remedy of reinstatement is
    impracticable.       Patterson, 90 F.3d at 937 n.8; Brunnemann, 975
    F.2d at 180.    A front pay award is intended to compensate the
    plaintiff for wages and benefits he would have received from the
    defendant employer in the future if not for the discrimination.
    Burns, 890 F.2d at 753.       This court reviews a district court’s
    determination regarding a front pay award for abuse of
    discretion.    Id.
           In the instant case, if, as we hold above, the district
    court’s back pay finding was not clearly erroneous, then the
    district court did not abuse its discretion by holding that the
    Appellees were not entitled to front pay.      The back pay finding
    was effectively a finding that the Appellees would not have
    received future wages from Unocal, even absent the
    discrimination.    See id. at 753 (front pay award would be “purely
    speculative” when defendant employer sold assets to another
    company and many employees were terminated).
           We affirm the district court’s holding that the Appellees
    were not entitled to an award of front pay.
    VIII. Whether Hough and Earles Were Exempt Under the FLSA
           Hough and Earles appeal the district court’s bench trial
    holding that they were “exempt” administrative employees under
    the FLSA and therefore not entitled to compensation for unpaid
           The FLSA imposes maximum work hour standards and requires
    employers to compensate employees who work overtime.    29 U.S.C. §
    207.    Employees who are classified as “exempt” are not entitled
    to such compensation; in pertinent part, 29 U.S.C. § 213(a)(1)
    exempts “any employee employed in a bona fide executive,
    administrative, or professional capacity.”    These exemptions are
    construed narrowly against the employer and the employer has the
    burden of proving that an employee is exempt.    Dalheim v. KDFW-
    918 F.2d 1220
    , 1224 (5th Cir. 1990)    The district court’s
    findings as to whether an employee is exempt are reviewed under a
    mixed standard of review.    In Dalheim, this court recognized that
    it can be difficult to discern which issues in this inquiry are
    questions of law and which are questions of fact.    Id. at 1225.
    The Dalheim court explained that questions of “historical fact”
    (e.g., whether an employee’s work was reviewed by a supervisor)
    and inferences drawn from historical facts (e.g., whether an
    employees work is “original and creative”) are fact findings
    reviewed for clear error.    Id.   at 1226.   The ultimate finding
    whether the employee is exempt, though based on historical fact
    and factual inferences, is a legal conclusion subject to plenary
    de novo review.   Id.   Thus, the proper inquiry in the instant
    case is (1) whether the district court’s historical factual
    findings and factual inferences were clearly erroneous and, (2)
    whether they support the district court’s legal conclusion that
    Hough and Earles were exempt under the administrative exemption.
         The Secretary of Labor has defined the test for the
    administrative exemption for employees who, like Hough and
    Earles, earned more than $250 per week, in 29 C.F.R. 541.2: An
    administratively exempt employee is one whose “primary duty”
    consists of “office or nonmanual work directly related to
    management policies or general business operations” and who
    “customarily and regularly exercises discretion and independent
    judgment.”15   The district court made findings of historical
          The employee must also meet the following criteria:
         “(c)(1) Who regularly and directly assists a proprietor, or an
         employee employed in a bona fide executive or administrative
         capacity (as such terms are defined in the regulations of this
         subpart), or
         (2) Who performs under only general supervision work along
    fact concerning Hough and Earles’s employment and reached the
    legal conclusion that they met the test for the administrative
         Hough and Earles assert that they do not seek to set aside
    the district court’s factual findings and they do not argue that
    the specific findings listed by the district court are erroneous.
    They do, however, assert that the record contains additional
    evidence supporting further findings of fact.    This amounts to
    requesting de novo review of the facts and is inappropriate for
    this court’s review of the district court’s factual findings made
    after a bench trial.   See Owsley v. San Antonio Indep. Sch.
    187 F.3d 521
    , 523 n.1 (distinguishing Dalheim, in which
    the court reviewed factual findings following a bench trial only
    for clear error, from Owsley, in which the court was reviewing a
    summary judgment de novo).   The district court considered the
    evidence cited by Hough and Earles in reaching its understanding
    of the pertinent facts and implicitly rejected the further
         specialized or technical lines requiring special training,
         experience, or knowledge, or
         (3) Who executes under only     general    supervision   special
         assignments and tasks; and
         (d) Who does not devote more than 20 percent, or, in the case
         of an employee of a retail or service establishment who does
         not devote as much as 40 percent, of his hours worked in the
         workweek to activities which are not directly and closely
         related to the performance of the work described in paragraphs
         (a) through (c) of this section.” 29 C.F.R. 541.2.
    findings that they now urge.   Because Hough and Earles have not
    shown that the court’s factual findings are clearly erroneous,
    and because they have not shown that the district court clearly
    erred in refusing to make the additional factual findings that
    they now assert, we take the district court’s factual findings as
    established and review its conclusions of law de novo.
         In Lott v. Howard Wilson Chrysler-Plymouth, 
    203 F.3d 326
    (5th Cir. 2000), this court offered guidance for applying the
    administrative exemption:
         “The exercise of discretion and independent judgment
         necessitates consideration and evaluation of
         alternative courses of conduct and taking action or
         making a decision after the various possibilities have
         been considered. 29 C.F.R. § 541.207(a). This exercise
         of discretion and independent judgment must relate to
         matters of consequence. 29 C.F.R. § 541.207(b)-(c)(1).
         Final decision making authority over matters of
         consequence is unnecessary.
         As a general rule, an employee's ‘primary duty’
         involves over 50% of the employee's work time. And yet,
         flexibility is appropriate when applying this rule,
         depending on the importance of the managerial duties as
         compared with other duties, frequency of exercise of
         discretionary power, freedom from supervision, and
         comparative wages.” Id. at 331 (case citations
    Further guidance is found in 29 C.F.R. § 541.201, in which the
    Secretary offers examples of staff employees who may typically
    qualify for the administrative exemption, provided they meet all
    the tests required in 29 C.F.R § 541.2.   The district court’s
    factual findings concerning Hough’s position as HES Coordinator
    accord with the “safety director” position contemplated in 29
    C.F.R. § 541.201(a)(2)(ii).    Earles’s production technician
    position is analogous to the “field representatives of utility
    companies” and “district gaugers for oil companies” contemplated
    in 29 C.F.R. § 541.201(a)(3).     The district court did not err in
    its legal conclusion that Hough and Earles were exempt employees.
         We affirm the district court’s holding that Hough and Earles
    were not entitled to compensation for unpaid overtime on their
    FLSA claims.
    IX. Whether Plaintiffs Were “Prevailing Parties” Entitled to
    Legal Fees
         The ADEA, by reference to the FLSA, mandates that a district
    court award attorneys’ fees to a plaintiff who is a “prevailing
    party.”   Purcell, 999 F.2d at 961.   The court has discretion in
    deciding what is reasonable.    Id.   In the context of a 42 U.S.C.
    § 1988 action in which a plaintiff was awarded only nominal
    damages, the Supreme Court explained that “to qualify as a
    prevailing party, a civil rights plaintiff must obtain at least
    some relief on the merits of his claim.”     Farrar v. Hobby, 
    113 S. Ct. 566
    , 573 (1992).
         As detailed above, we affirm the district court’s judgment
    in favor of the Appellees as to several of their claims.    These
    plaintiffs have obtained “at least some relief on the merits” and
    thus qualify as prevailing parties.    We have held that liquidated
    damages must be awarded in an amount equal to the back pay award.
    In light of this holding, we instruct the district court to
    consider on remand what, if any, adjustment should be made to the
    amount of the legal fees award.
    X.   Expert Witness Fees
         The Appellees seek to add their expert witness fees to the
    fees and costs award.    The Supreme Court has explained that the
    interrelation of Fed. R. Civ. P. 54(d)(1) (relating to costs
    other than attorneys’ fees), 28 U.S.C. § 1920 (listing “costs”
    that may be taxed by a federal court), and 28 U.S.C. § 1821
    (authorizing per diem and travel expenses for witnesses) means
    that expert witness fees in excess of the standard witness per
    diem and travel allowances cannot be taxed in the absence of
    express statutory authority to the contrary.     Crawford Fitting
    Co. v. J.T. Gibbons, Inc., 
    107 S. Ct. 2494
    , 2496 (1987);16 see
    also Leroy v. Houston, 
    831 F.2d 576
    , 584 (5th Cir. 1987)
    (applying Crawford to fee-shifting provision of the Voting Rights
    Act).     There is no express statutory authority in the ADEA or the
          The wording of Rule 54(d)(1) has been slightly amended since
    Crawford. Compare Fed. R. Civ. P. 54(d)(1) (2001) with Crawford,
    107 S.Ct. at 2497.         But the operative language remains
    substantially the same in pertinent part.       In relevant part,
    current Rule 54(d)(1) reads: “Except when express provision
    therefor is made either in a statute of the United States or in
    these rules, costs other than attorneys’ fees shall be allowed as
    of course to the prevailing party unless the court otherwise
    directs.” The Crawford Court explained that § 1920 defines “costs”
    as used in Rule 54(d)(1) and enumerates the expenses that a federal
    court may tax as costs. Crawford, 107 S.Ct. at 2497. Section 1920
    permits compensation for expert witnesses only when those witnesses
    are appointed by the court. 28 U.S.C. 1920(6).
    FLSA to award expert witness fees for other than court-appointed
    expert witnesses.   The district court did not err in refusing to
    award the Plaintiffs expert witness fees.
    XI. Delay Enhancement
         Following the district court’s judgment on the fees and
    costs request, the Appellees moved for a delay enhancement in a
    motion to alter or amend the judgment filed pursuant to Fed. R.
    Civ. P. 59(e).   The district court denied the motion.   On appeal,
    the Appellees argue that the delay enhancement should be granted
    to compensate for the approximately two year (that is, up to the
    present time) delay in payment.
         Denial of a Rule 59(e) motion to amend or alter a judgment
    is generally reviewed for abuse of discretion.     Fletcher v.
    210 F.3d 510
    , 512 (5th Cir. 2000).   Issues that are purely
    questions of law are, however, reviewed de novo.     See id.
         In the instant case, the Appellees did not request the delay
    enhancement in their original motion for attorneys’ fees,
    although they did request a lodestar enhancement, which was
    denied.   Their Rule 59(e) motion was not a motion to reconsider
    the judgment on its merits, rather it was a motion to consider a
    new issue.    The Appellees do not argue that the district court
    erred in a question of law.   The district court’s application of
    the law to the facts is therefore subject to an abuse of
    discretion standard of review.    The Appellees have not addressed
    the standard of review for this issue and have not shown that the
    district court abused its discretion.    The Appellees’ concession
    that the district court’s calculation of the lodestar amount was
    not an abuse of discretion weighs against finding in their favor
    on the delay enhancement issue.    See Walker, 99 F.3d at 773
    (district court may either grant unenhanced lodestar based on
    current rates or calculate lodestar using rates applicable when
    work was done and grant delay enhancement, but not both).    The
    district court already awarded the Appellees $50,000 in
    attorneys’ fees and $2,500 in costs for this appeal.   We affirm
    the district court’s denial of a delay enhancement.
         With regard to the appeals on the merits, we affirm the
    district court in all respects except as to the amount of
    liquidated damages.   As we have explained, the ADEA mandates a
    liquidated damages award in an amount equal to the back pay
    award.   We vacate and remand the damages award with instructions
    to award liquidated damages to each of the Appellees in an amount
    equal to his back pay award.
         With regard to the fees and costs appeals, we affirm the
    district court in all respects except that we instruct the
    district court to consider, on remand, whether (and, if so, to
    what extent) an adjustment to the fees award is appropriate in
    light of the adjustment to the liquidated damages award.
         AFFIRMED in part; VACATED in part; and REMANDED with