         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                        Nos. 1D17-4561
                             1D17-4813
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CAPITAL HEALTH PLAN,

    Appellant,

    v.

TIMOTHY MOORE,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

                        October 23, 2019

OSTERHAUS, J.

     Dr. Timothy Moore won a $40,000 verdict plus front pay on
his age discrimination claim against his employer Capital Health
Plan (CHP), which promoted a younger doctor to a position that
Dr. Moore sought. On appeal, CHP takes issue with the sufficiency
of the evidence, the jury instructions, the award of front pay, and
the attorneys’ fee award. We affirm, except for the attorneys’ fees
issue, which we remand for additional consideration.

                                I.

     In 2015, Dr. Moore filed a complaint alleging age
discrimination against CHP under the Age Discrimination in
Employment Act (ADEA). The complaint alleged that CHP had
created a new position within its eye care department and selected
a less qualified doctor thirty years Dr. Moore’s junior. The case
went to trial in 2017. After Dr. Moore rested his case, CHP moved
for a directed verdict, arguing that Dr. Moore had failed to show
that its nondiscriminatory reasons for selecting the younger doctor
were pretextual. The trial court denied the motion and the case
was sent to the jury. The jury found for Dr. Moore and awarded
$40,000 in lost wages.

     Moore moved post-trial for front pay and attorneys’ fees,
which CHP contested. The court awarded both. Dr. Moore received
front pay in the amount of $10,000 for every year he continues to
be employed by CHP. On attorney’s fees, the parties agreed on the
number of hours worked, but not on the hourly rates. The court
ultimately determined the hourly rates based on the testimony of
one of Dr. Moore’s attorneys and the transcript of a fee hearing in
a different case in federal court. CHP now appeals the final
judgment and the orders granting front pay and attorneys’ fees.

                                II.

     We find no error or abuse of discretion with the first three
issues raised by CHP. First, with respect to the denial of CHP’s
directed verdict motion, we must affirm unless “no proper view of
the evidence could sustain a verdict in favor of the nonmoving
party.” Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 329
(Fla. 2001). Review is de novo. Williams v. Washington, 120 So. 3d
1263, 1264 (Fla. 1st DCA 2013). In this case, although CHP
presented evidence suggesting that its hiring decision was based
on legitimate, non-discriminatory reasons, Dr. Moore produced
competent conflicting evidence that CHP’s given reasons for
choosing the younger doctor over him were pretextual and that age
was the actual reason. Given the conflicting evidence, we cannot
conclude that the trial court erred by denying CHP’s motion for
directed verdict.

     Secondly, no reversible error was made as to the jury
instructions. We agree with CHP’s argument that Dr. Moore
couldn’t prevail on his ADEA claim just by proving that age was “a
motivating factor” in the promotion decision rather than a “but-
for” reason. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-

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76 (2009). But the jury instructions correctly reflected the law on
this point, even while adding that age discrimination needn’t be
the “sole cause” for the employer’s action. See, e.g., Leal v. McHugh,
731 F.3d 405, 415 (5th Cir. 2013) (noting that “but-for cause” does
not mean “sole cause . . . an employer may be liable under the
ADEA if other factors contributed to its taking the adverse action,
as long as age was the factor that made a difference”) (quoting
Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1277 (10th Cir.
2010)). * A new trial isn’t warranted here because the jury

    *   The disputed instructions stated in part as follows:

         The Plaintiff, Dr. Timothy Moore, is employed by the
    Defendant, Capital Health Plan (CHP) as a staff
    optometrist. Dr. Moore applied for the position of
    Associate Chief of Eye Care. Dr. Moore contends that his
    age was a factor in CHP’s decision—that it made a
    difference in the outcome even if it was not the sole factor.
    CHP denies this allegation and asserts that it had a
    legitimate business reason for its decision to promote Dr.
    Adamson over Dr. Moore. . . .

         To determine that CHP did not promote Dr. Moore
    because of his age, you must decide that CHP would not
    have passed him over if Dr. Moore had been younger but
    everything else had been the same. CHP denies that it
    did not promote Dr. Moore because of his age and claims
    that it made the decision for another reason.

         An employer may not discriminate against an
    employee because of age, but an employer may choose not
    to promote an employee for any other reason, good or bad,
    fair or unfair. If you believe CHP’s reason for its decision
    not to promote and you find that its decision was not
    because of Dr. Moore’s age, you must not second guess
    that decision, and you must not substitute your own
    judgment for CHP’s judgment even if you do not agree
    with it.

        On the other hand, it is not necessary for Dr. Moore
    to prove that age was the sole or exclusive reason for
    CHP’s decision. It is sufficient if Dr. Moore proves that
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instructions stated that age must be determinative. The
instructions surrounding the part of the instruction disputed by
CHP—the “a determining consideration” language—clarifies
potential ambiguities by repeatedly hinging CHP’s liability on
whether its decision not to promote Dr. Moore was because of age.
This was also reflected on the verdict form which asked the jury to
decide whether “[CHP] did not award [Moore] the [promotion]
because of his age?” We find no abuse of discretion on this issue.

     Thirdly, on the front pay issue, CHP argues that it was
necessary for Dr. Moore to show particularly “egregious
circumstances” in order to receive front pay. It cites an Eleventh
Circuit case where an employee could not return to his work
environment because of pronounced discrimination. See Lewis v.
Fed. Prison Indus., Inc., 953 F.2d 1277, 1281 (11th Cir. 1992). In
Lewis, the employer offered to reinstate the plaintiff, which would
typically terminate back pay and front pay, and the court had to
decide whether the plaintiff reasonably rejected that offer in favor
of front pay as an equitable matter. Id. at 1279. The rule from this
case was that in circumstances where the employer offers
reinstatement, the court would expect the plaintiff to show
“egregious circumstances” that foreclosed acceptance of the offered
reinstatement. Id. at 1281. This case does not involve a
reinstatement dispute between the parties. Judge Tjoflat’s partial
concurrence in Lewis more closely addressed the circumstances
here, where he approved of the remedy awarded here in failure-to-
promote cases: “where the promotion cannot be awarded because
the position sought has been filled, the court can, as an equity
remedy, simply order the employer to pay the employee the wages
of that position.” Id. at 1286. Judge Tjoflat’s equitable view is
consistent with the ADEA’s provision for plaintiffs to be restored
to the economic position he or she “would have occupied but for the


    age was a determining consideration that made a
    difference in CHP’s decision.

        As I have explained[,] Dr. Moore has the burden to
    prove that CHP’s decision not to promote him was
    because of his age . . . . To decide whether CHP’s decision
    was because of Dr. Moore’s age[.]

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illegal discrimination.” Farley v. Nationwide Mut. Ins. Co., 197
F.3d 1322, 1338 (11th Cir. 1999). Front pay is an equitable remedy
generally available to trial courts as a means of making plaintiffs
whole. See Duke v. Uniroyal Inc., 928 F.2d 1413, 1423 (4th Cir.
1991) (noting that “virtually all circuits that have considered the
subject [have concluded] that front pay is an available remedy to
complete the panoply of remedies available to avoid the potential
of future loss”). In this case, the award of the difference in salary
that Dr. Moore would have made if promoted provides restitution.
It allows Dr. Moore to be made whole without forcibly bumping the
incumbent out of the lone associate chief position, an alternative
remedy that neither party sought. Cf. Lander v. Lujan, 888 F.2d
153, 157 (D.C. Cir. 1989) (discussing the option of removing
incumbents who are innocent beneficiaries of an employer’s
discrimination). The equitable remedy crafted by the trial court fell
within its discretion under these circumstances.

     Finally, CHP argues that Dr. Moore presented insufficient
evidence supporting the requested hourly rates of his attorneys.
Appellate courts review awards of attorneys’ fees for an abuse of
discretion. Shelly L. Hall, M.D., P.A. v. White, 97 So. 3d 907, 909
(Fla. 1st DCA 2012). Section 760.11(5), Florida Statutes, allows
prevailing parties to recover attorneys’ fees consistent with federal
case law interpreting Title VII. Winn-Dixie Stores, Inc. v. Reddick,
954 So. 2d 723, 731 (Fla. 1st DCA 2007). One of the prerequisites
of an award is that the trial court must determine a reasonable
hourly rate for the services of the prevailing party’s attorney. Fla.
Patient’s Comp. Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985).
The party seeking the fees carries the burden of establishing “the
prevailing ‘market rate,’ i.e., the rate charged in that community
by lawyers of reasonably comparable skill, experience and
reputation, for similar services.” Id. at 1151 (italics omitted).

     Dr. Moore’s motion for attorneys’ fees sought rates of between
$750/hr. and $450/hr. for his four Tallahassee attorneys. His
motion was backed by his attorney’s testimony and a transcript
from a fee hearing in a federal case in which the attorney had
received a comparable fee award. CHP argues that the appropriate
hourly rates were hundreds of dollars lower and that plaintiff
failed to introduce independent expert testimony as required to
support such a fee award. Florida cases establish that “[w]hen

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someone other than the client is required to pay the other party’s
attorney’s fees, the trial court must award only a reasonable fee,
determined from testimony by expert witness lawyers as to the
prevailing rates for attorneys in comparable circumstances and as
to the amount of time reasonably expended by the attorney for the
party seeking payment.” Bennett v. Berges, 50 So. 3d 1154, 1160
(Fla. 4th DCA 2010) (emphasis added); Crittenden Orange Blossom
Fruit v. Stone, 514 So. 2d 351, 352–53 (Fla. 1987) (“[I]t is well
settled that the testimony of an expert witness concerning a
reasonable attorney’s fee is necessary to support the establishment
of the fee.”). Because the hourly rates determined to be appropriate
here were not established by expert testimony, we reverse and
remand for further consideration.

                                III.

     For these reasons, we affirm the judgment, except for the
attorneys’ fees award, which is reversed and remanded for further
consideration consistent with this opinion.

    AFFIRMED in part, REVERSED in part, and REMANDED.

ROWE and WINOKUR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Candy L. Messersmith of Rumberger, Kirk & Caldwell, P.A.,
Orlando; Linda Bond Edward and David B. Shelton of Rumberger,
Kirk & Caldwell, P.A., Tallahassee, for Appellant.

Richard E. Johnson of the Law Office of Richard E. Johnson,
Tallahassee; Marie A. Mattox and James Garrity of Marie A.
Mattox, P.A., Tallahassee, for Appellee.



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