                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT



                                  _____________

                               Nos. 96-1394/1490
                                _____________

Paul Bevan,                             *
                                        *
      Cross-Appellant/Appellee,         *   Appeal from the United States
                                        *   District Court for the
      v.                                *   District of Minnesota.
                                        *
Honeywell, Inc.,                        *
                                        *
      Appellant/Cross-Appellee.         *


                                  _____________

                        Submitted: November 18, 1996

                         Filed: July 3, 1997
                                 _____________

Before FAGG, LAY, and HANSEN, Circuit Judges.
                           _____________


HANSEN, Circuit Judge.

      Paul Bevan brought this age discrimination suit against his former employer,
Honeywell, Inc., alleging violations of the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621-634 (1988 & Supp. IV 1992), and the Minnesota Human
Rights Act (MHRA), Minn. Stat. Ann. §§ 363.01-363.15 (1991 & Supp. 1997). Bevan
won a jury verdict on the ADEA claim, which Honeywell appeals, and the district court
found in favor of Honeywell on the MHRA claim, which Bevan cross appeals. Bevan
also cross appeals the district court's award of attorney's fees. We affirm in part and
reverse in part.

                                    I. Background

        For the purpose of reviewing the ADEA claim, we recite the facts in the light
most favorable to the jury verdict. See Parrish v. Immanuel Med. Ctr., 92 F.3d 727,
731 (8th Cir. 1996). In May 1968, Paul Bevan began working for Honeywell as a field
sales representative in New Jersey. He left Honeywell on good terms for a period of
approximately six months in the 1970s, after which he returned to Honeywell as a
branch manager trainee. During the late 1970s, Bevan was promoted to the position
of branch manager in Santa Ana, California, on the recommendation that "[h]e is quick,
intelligent, and talented with a desire for both challenge and success." (Appellee's App.
at 42.) In 1981, he relocated to the Minneapolis area to serve as director of marketing
for the Protection Services Division of Home and Building International. At that time,
Honeywell's umbrella group, Home and Building International, was organized in three
segments -- the Protection Services Division, the Commercial Buildings Group, and the
Residential Building Control Division.

       In January 1987, Bevan was named the director of systems marketing for the
Commercial Buildings Group, selling hardware to perform climate control functions in
commercial buildings. On the same day, Kevin Gilligan assumed the office of director
of services marketing for the Commercial Buildings Group, maintaining and servicing
the hardware after its installation. In 1988, Bevan's immediate supervisor was Richard
Egan, vice president of marketing, manufacturing, and engineering for the Commercial
Buildings Group. Egan reported to David Larkin, the vice president and general
manager for the Commercial Buildings Group.


                                           2
       Honeywell's company personnel file and evaluations of Bevan reflect nothing
less than positive improvement and above average performance on his part. Bevan
always received high performance ratings in annual reviews. Consistent with these
reviews, he was awarded regular merit raises throughout his career.

       Although there were no negative comments in Bevan's performance evaluations
concerning his management style or personality, Bevan decided to participate in a
program at Personnel Decisions, Inc. (P.D.I.), designed to enhance his executive skills.
Honeywell paid approximately $11,160 for his participation in the program. The
assessment and evaluation reports from the program contained some negative
comments about Bevan's confrontational style, noting that his "communication skills
are hampered by his abrasive, domineering management style." (Trial Tr. at 467.)
Bevan completed this program in early 1991 and immediately thereafter received
positive comments about perceived improvements in his interpersonal skills. His last
performance evaluation, which was conducted in the summer of 1990, reflected an
outstanding performance rating, and Bevan was awarded a merit increase in salary
effective January 1, 1991.

        On January 1, 1991, a new president, Michael Bonsignore, was appointed for
the Home and Building International operations. Bonsignore chose Manfred Fiedler
to act as human relations planner, and Fiedler appointed Jack Ruppel, human resource
manager, as his aide. Bonsignore began a "revitalization" campaign for the company.
For years, Honeywell's human resource department had used an annual talent review
process to identify talented persons who could be prepared to fill significant managerial
positions on short notice if such a position became available due to illness or death of
a management head. Prior to the revitalization campaign, this talent review process had
always evaluated the talent pool in a neutral fashion, without regard to age. With the
revitalization campaign came a change in this policy. Succession planning documents
for the Commercial Buildings Group dated March 1991, included a list of high talent
persons and their ages. With one exception, all were under age 50.

                                           3
       On May 16, 1991, Ruppel (human resource manager) sent a memo to the human
resource heads of the three divisions within Home and Building International,
requesting information pertinent to the talent review process. The memo asked the
division heads to begin considering some specifically listed points that would be
important for the 1991/92 developmental plan, noting that "various elements" of the
review process would "be somewhat different from what you're used to." (Appellant's
App. at 125.) The memo stated that the 1991/92 plan "requires your best thinking as
to specific action plans to prepare your key talent and/or younger (35 year olds)
promising talents." (Id.) The memo directed the department heads to "[f]ocus on your
younger, promising talents (in the 35 year old range or younger)," and provided that
each would have 45 minutes "to present 2-3 key or promising younger talents." (Id. at
126.) Finally, the memo warned that "candidates should not be compromises, but really
excellent choices, specifically, younger, promising talents." (Id.) Larkin, vice
president of the Commercial Buildings Group, testified that he received this memo. He
said that he was disappointed with the language of the memo and that he thought
Ruppel had misinterpreted the corporation's intent in searching out talent for the
corporation's long-range leadership goals. In response to this reaction, Ruppel
circulated a revised and "sanitized" memo which omitted the language directly
evidencing a preference for the younger talent. Nevertheless, the human resources head
for the Commercial Buildings Group, Ronald Pederson, responded to Ruppel's memo
by identifying young, high-potential employees, all of whom, with one exception, were
under the age of 50.

      On October 14, 1991, Larkin reorganized the Commercial Buildings Group's
marketing forces by combining what had been the systems marketing department
(headed by Bevan) with the services marketing department (headed by Gilligan).
Honeywell claimed that this reorganization was an effort to correct and eliminate
disputes that existed between the actual sales and installation people and the people
who were developing marketing policy and strategy, such as Bevan. This
reorganization eliminated Dick Egan's position as vice president of marketing,

                                          4
engineering, and production (Bevan's boss) as well as Bevan's position as director of
systems marketing.

       Bevan had been aware that this reorganization, combining the marketing and
services departments, would take place at some time. Having received only positive
feedback concerning his performance prior to that time, Bevan had remained confident
that there would be a place for him in the new organization. On the day the
reorganization was announced, Bevan had a previously scheduled meeting with Egan.
Egan then informed Bevan that Bevan would no longer be in marketing and that Larkin
had chosen Kevin Gilligan (who was 36 years old at the time) to be the vice president
of the new unitary marketing and services department. Bevan asked Egan why he was
being removed from marketing, and he responded that Larkin felt he (Bevan) would not
be able to report to or support the younger Gilligan, because of Bevan's experience and
age.

       On December 13, 1991, however, Gilligan created a marketing position for
Bevan as director of contractor marketing and distribution. Before beginning this new
position, Bevan took three weeks of vacation, during which he had facial surgery in an
attempt to look younger. Bevan had noticed that every new director-level person was
under the age of 40 after the reorganization.

       On December 20, 1991, one week after Gilligan announced Bevan's new
position, Honeywell announced that it was combining the three separate units of Home
and Building International -- the Protection Services Division, the Commercial
Buildings Group, and the Residential Building Control Division -- into one integrated
unit called the Honeywell World-Wide Home and Building Control Organization
(H&BC). Bonsignore appointed Jean-Pierre Rosso, formerly the president of
Honeywell in Europe, as president of the new H&BC. On January 20, 1992, when
Bevan returned from his facial surgery to start his new position, he learned that Rosso
had replaced David Larkin with Richard Cathcart and ordered that Bevan be removed

                                          5
from marketing. Gilligan, then age 37, and Marty Griemal, age 34, assumed Bevan's
responsibilities. Bevan was the only director-level marketing person within Gilligan's
organization who was over the age of 45, and he was the only one removed.

        Bevan was removed from his position, but he was not terminated for another five
months and he was given no work in the interim. Several employees asked Bevan to
help with projects during this time, but they never received permission to give work to
Bevan. Honeywell represented to Bevan that it remained committed to finding him a
position, and Cathcart and Ron Pederson, a human resources person, were allegedly
attempting to help Bevan find a new opportunity within Honeywell. In reality, only
three days after Bevan was removed from his position, Pederson had already prepared
a termination agreement detailing the terms of Bevan's separation from Honeywell. At
one point, Pederson reported to Bevan that Mannie Jackson, vice president of sales,
had said he had a job for Bevan. Pederson told Bevan, "Unfortunately, Jean-Pierre
Rosso blocked that." (Trial Tr. at 366.) Bevan was very interested in a branch
manager opening in Los Angeles, and Pederson discussed this possibility with Brian
McGourty, vice president of field operations. After this, Pederson reported to Bevan
that "it's not getting easier. Jean-Pierre Rosso and Brian McGourty have got their own
ideas about this organization." (Id. at 367.) McGourty did not offer Bevan the position
but instead hired a 38-year-old man for the Los Angeles job. At one point, Pederson
told Bevan, "It's getting tough to fit the old farts from Commercial Building group into
this organization." (Id. at 367-68.) After this remark, Pederson, who was in his fifties
himself, mused that he would likely also be affected by this new organization.
      As further evidence of a youth movement and age-biased animus on the part of
Rosso, Bevan presented a letter dated March 1992 from Loring Knoblauch, president
of Honeywell Asian Pacific, addressed to Rosso. In the letter, Knoblauch asks Rosso
to consider an employee named Wade Smith for a position in the new revitalized
organization. Knoblauch apparently felt the need to plead that Smith not "be tarred
with the same brush as some of his compatriots in Marketing." (Appellee's App. at


                                           6
249.) Knoblauch asked Rosso to find a place for Smith after the reorganization, even
though Smith was not a "young high talent" like the "Stanford or Wharton kids" they
were recruiting. (Id. at 250.)

      On April 20, 1992, Bevan was presented with a termination package, which
included a requirement that Bevan sign a general release of all claims against
Honeywell. Bevan did not want to release his right to file an age discrimination suit.
On June 11, 1992, Bevan was informed that he must either take the termination
package or be terminated. Bevan refused to sign the general release, and Cathcart
placed him on layoff status on June 17, 1992.

       Bevan brought this age discrimination suit, alleging that Honeywell violated both
the ADEA and the Minnesota Human Rights Act. Bevan also alleged several common-
law claims, which the district court dismissed before trial. The ADEA claim was tried
to a jury.

        At trial, for its legitimate, nondiscriminatory reason for the adverse employment
actions, Honeywell asserted that Bevan's argumentative personality and abrasive
management style made him difficult to work with, caused tension between the group's
field branch (sales and installation people) and the marketing branch (those making
marketing strategies and policies such as Bevan), as well as conflict with the Europeans
at a time when globalization was vital to the company. Some Honeywell people
testified that Bevan has an abrasive personality, resulting in a reputation among his
peers and superiors as being confrontational, difficult, and argumentative. While Bevan
acknowledged such negative comments, he presented testimony that his interpersonal
skills had much improved after his participation in the P.D.I. program in 1990. John
Kellebrew, Honeywell's vice president and general manager of the western area, who
had attended heated meetings with Bevan and had often disagreed with Bevan, could
not recall any time when he thought Bevan acted inappropriately. Also, Kellebrew did
not recall any tension or disputes between field and marketing.

                                           7
       Honeywell asserted that Bevan's personality cost him a promotional opportunity
in February 1990 (not an employment decision at issue in this suit). At that time,
Loring Knoblauch, head of the Honeywell Asia-Pacific organization, brought Bevan
and his wife to Hong Kong to consider Bevan for a position there. Staff members in
Hong Kong reported personality conflicts with Bevan after meeting him. Knoblauch
decided that Bevan would not be culturally adaptable to the position and also that he
lacked the necessary "people skills" and "tact." (Trial Tr. at 1291.) Bevan was not
chosen for the Hong Kong position. Honeywell asserted that this was typical behavior
for Bevan and that his personality ultimately prevented him from finding a suitable
position within Honeywell after the reorganization.

       Bevan offered his own version of the Hong Kong incident. He was disenchanted
by certain cultural and societal aspects of life in Hong Kong, such as the huge economic
disparity that is commonplace and the pervasive use of household servants.
Consequently, he was happy not to be chosen for that position in 1990.

      Additionally, Honeywell pointed to the P.D.I. program (where negative
statements about Bevan's management style emerged) as proof that the adverse
employment actions were due to Bevan's poor interpersonal skills. Bevan
acknowledged the statements but asserted that diagnosing any managerial weaknesses
was the purpose of the program. As noted above, Bevan demonstrated that
immediately after participating in the program, he received compliments about his
improved skills. Also, any such weaknesses were not enough of a problem to ever
have been mentioned in any company evaluations of his performance.

      The jury in the ADEA case returned special verdicts finding that age was a
determining factor in Honeywell's adverse employment actions against Bevan, that
Honeywell's conduct was not willful, and that Bevan was entitled to back pay in the
amount of $275,217 and front pay in the amount of $214,137.


                                           8
       The MHRA claim was tried to the court. Contrary to the jury findings, the
district court found that Honeywell did not engage in unlawful age discrimination in
violation of the MHRA and dismissed the state claim with prejudice.

       Bevan applied for an award of attorney's fees roughly equal to the total jury
award in this case. The district court concluded that the fee application did not
accurately reflect the relationship between the fee requested and the results obtained.
The court made an equitable adjustment, taking into account Bevan's limited success
in this case, and concluded that $250,000 was a reasonable award of attorney's fees.
Both parties appeal.

                                 II. Discussion
                         A. Judgment as a Matter of Law

     Honeywell appeals, arguing that the district court erred in denying its motion for
judgment as a matter of law on the ADEA claim.

      Judgment as a matter of law is appropriate only when the nonmoving
      party fails to present enough evidence to permit a reasonable jury to
      decide in his favor. We do not judge witnesses' credibility, we give the
      nonmoving party the benefit of all reasonable inferences, and we look at
      the evidence in the light most favorable to him. The evidence must point
      unswervingly to only one reasonable conclusion. This demanding
      standard reflects our concern that, if misused, judgment as a matter of law
      can invade the jury's rightful province.

Gardner v. Buerger, 82 F.3d 248, 251 (8th Cir. 1996) (internal citations omitted). In
accordance with this principle, "we will not reverse a jury's verdict for insufficient
evidence unless, after viewing the evidence in the light most favorable to the verdict,
we conclude that no reasonable juror could have returned [such] a verdict." Ryther v.
KARE 11, 108 F.3d 832, 836 (8th Cir. 1997) (en banc), petition for cert. filed, 65


                                          9
U.S.L.W. 3694 (U.S. Apr. 4, 1997) (No. 96-1571). In other words, judgment as a
matter of law is not appropriate "'if reasonable persons could differ as to the
conclusions to be drawn from the evidence.'" Id. at 844 (quoting Haynes v. Bee-Line
Trucking Co., 80 F.3d 1235, 1238 (8th Cir. 1996)) (other internal quotations omitted).

        Our standard for reviewing the sufficiency of the proof in an age discrimination
pretext case1 tried to a jury is set forth in Ryther, 108 F.3d at 836-38, 848; and is
modeled on St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-512 (1993), Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981), and McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973). A pretext case is one in which
the plaintiff proves unlawful discrimination by presenting a prima facie case of
discrimination, the burden of production then shifts to the employer to assert a
legitimate, nondiscriminatory reason for the adverse employment action, and finally,
the plaintiff must demonstrate that the employer's articulated legitimate reason for the
adverse employment action is a mere pretext for age discrimination. Ryther, 108 F.3d
at 836-37. Within this framework, the plaintiff is not required to present direct
"smoking gun" type proof of discrimination in order to make out a submissible case for
the jury. Id. at 836. The fundamental issue is "whether [the plaintiff] produced
sufficient evidence to allow a jury reasonably to find that [the employer] intentionally
discriminated against him on the basis of his age." Id. at 838.
        The adverse employment decisions at issue are Larkin's October 1991 removal
of Bevan from director of systems marketing and the appointment of Gilligan instead



       1
        In the context of age discrimination, it is important to recognize at the outset that
we are dealing with a pretext case, not a case of mixed motives; additionally, this is not
a pretext case that arose out of a reduction in force. See Ryther, 108 F.3d at 836 n.1.
At oral argument, Honeywell asserted for the first time that the adverse employment
actions at issue in this case resulted from a reduction in force. Our review of the record
satisfies us that the district court properly tried this case as one of pretext. We will not
consider the belated argument that this claim arose from a reduction in force.

                                             10
of Bevan; Rosso's January 1992 removal of Bevan from the position of director of
contractor marketing; McGourty's rejection of Bevan with regard to the Los Angeles
branch office; and Cathcart's ultimate decision to terminate Bevan from employment
with Honeywell on June 17, 1992. Bevan established a prima facie case of
discrimination, which required Honeywell to demonstrate a legitimate
nondiscriminatory reason for the adverse employment decisions. On appeal,
Honeywell argues that the evidence presented was not sufficient to raise an inference
that Honeywell intentionally discriminated against Bevan on the basis of his age.

        We have set forth above, in the light most favorable to the verdict, the evidence
that was admitted at trial. Our review of the evidence convinces us that a reasonable
jury could conclude that the company's revitalization campaign, instigated by
Bonsignore, consisted of a new company policy to weed out the older leaders and
replace them with talented young ones. Bevan's performance ratings had always been
high, and although he may have had a somewhat abrasive management style, which he
attempted to improve through the P.D.I. program, his performance ratings had revealed
no criticism of his management style or personal conduct. Based upon the documentary
evidence of Bevan's performance at Honeywell, the jury could have reasonably
disbelieved Honeywell's assertion that Bevan's personality was the nondiscriminatory
reason for Honeywell's adverse employment decisions.

       The human resources department quite blatantly indicated in Ruppel's memo that
age would be a major consideration in the talent review process. Additionally, Larkin
and Pederson had both made age-based comments about Bevan. Larkin was a
decisionmaker who was aware of Ruppel's memo emphasizing the identification of
younger talent. He commented that Bevan would be unable to report to the younger
Gilligan. Pederson was a human resources director who had responded to Ruppel's
memo with age-based information and who was ostensibly in charge of helping Bevan
find a suitable position within Honeywell after he was removed from marketing, but
who also was at the same time preparing Bevan's termination package. Pederson told

                                           11
Bevan that it was "getting tough to fit the old farts from Commercial Building group
into this organization." (Trial Tr. at 367-68.)

      Honeywell argues that stray remarks of nondecisionmakers such as Pederson and
Ruppel are not sufficient to raise an inference of age discrimination. We agree that
such comments, standing alone, would not raise an inference of discrimination. Ryther,
108 F.3d at 844. It is well-settled that stray remarks by nondecisionmakers, or remarks
by decisionmakers that are unrelated to the decisional process, do not suffice to show
that discrimination was a motivating factor in an employment decision so as to invoke
the mixed motives framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 258
(1989). Nitschke v. McDonnell Douglas Corp., 68 F.3d 249, 253 (8th Cir. 1995);
Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991). In a pretext case, however,
such comments are "surely the kind of fact which could cause a reasonable trier of fact
to raise an eyebrow," MacDissi v. Valmont Indus., Inc., 856 F.2d 1054, 1058 (8th Cir.
1988), thus providing "additional threads of evidence," Morgan v. Arkansas Gazette,
897 F.2d 945, 951 (8th Cir. 1990), that are "relevant to the jury." Ryther, 108 F.3d at
844. Pederson's statement that it was difficult to place "the old farts" in the new
organization and Ruppel's human resources memo, which directly stated a company
preference for younger talented individuals, constituted proper circumstantial evidence
for the jury to consider in combination with all the other evidence.
        Honeywell also argues that the alleged discriminatory statement by Larkin, who
clearly was a decisionmaker, does not constitute proof of age discrimination, because
the comment was irrelevant to the adverse employment decisions. Larkin removed
Bevan from his marketing position in October 1991 and promoted Gilligan instead of
Bevan. Viewed in the light most favorable to Bevan, the record indicates that Egan
(Bevan's immediate supervisor) said, "Larkin felt that [Bevan] would not be able to
report to Kevin Gilligan . . . because [Bevan] had a lot more experience, and [Bevan]
was a lot older than he [Gilligan] was . . . ." (Trial Tr. at 259.) This statement is
relevant to the jury's determination of whether Honeywell engaged in age


                                          12
discrimination, because it evidences an age-based reason that factored into an adverse
employment decision. Even accepting arguendo Honeywell's contention that the
comment was not directly related to the adverse employment decisions (and as such is
not, standing alone, direct proof of discrimination), statements of a decisionmaker that
are unrelated to the adverse employment decision are nevertheless relevant to the jury's
verdict when considered together with other evidence of pretext, such as a company
trend toward younger employees. See Ryther, 108 F.3d at 844.

       Honeywell contends that the statement attributed to Larkin was double hearsay
and that the district court erroneously admitted it into evidence. By failing to timely
object to the admission of this testimony, however, Honeywell failed to preserve this
issue for appeal. Baxley-DeLamar Monuments, Inc. v. American Cemetery Ass'n, 938
F.2d 846, 854 (8th Cir. 1991). Even had the issue been preserved, we would find no
error because each layer of the out-of-court statement was admissible as a statement
of a party opponent. Fed. R. Evid. 801(d)(2)(D). See Thomas v. International Bus.
Machs., 48 F.3d 478, 485 (10th Cir. 1995) (stating in an ADEA case that if the witness
is testifying to what an authorized agent of the employer said, the statement is an
admission of a party opponent).

       Bevan demonstrated through his testimony and statistical charts that after the
reorganization, the director-level positions were all occupied by younger individuals.
Bevan was the only director-level person over age 45 in Gilligan's organization after
it was reorganized, and he was the only one removed from that organization.

      Honeywell contends that Bevan's statistical evidence was incompetent as a
matter of law and should not have been considered by the jury on the issue of
intentional discrimination. Honeywell objected to the admission of this statistical
evidence for lack of foundation. The district court admitted the evidence in the jury
trial, but in its written findings regarding the MHRA claim, the district court stated in
a footnote that it found Bevan's statistical charts "unpersuasive" because they "assume

                                           13
certain premises for which there is no foundation." (Appellant's Addend. at 24 n.19.)
Notably, the district court did not retreat from its decision to admit the charts. Its
"nonpersuasive" finding is one of weight, not admissibility.

       We conclude that the district court did not abuse its discretion in admitting
Bevan's statistical charts. Contrary to Honeywell's assertion, Bevan was not attempting
to make a claim of disparate impact through statistics. Instead, as in MacDissi, 856
F.2d at 1058, he offered his statistics, which are more accurately described as charts
compiled from information in Honeywell's personnel directory, as one component of
Bevan's circumstantial proof that Honeywell's proffered reason for the adverse
employment decisions was a pretext for age discrimination. Introduced for this
purpose, "[Bevan's] quantitative evidence does not need to reach the degree of certainty
required of plaintiffs who present no proof of discrimination besides a statistical
pattern." Id. at 1058; see also id. at 1058 n.3 ("Even where quantitative evidence does
not alone demonstrate discrimination to some judicially created standard of statistical
conclusiveness, it is still relevant in conjunction with all other evidence in determining
intentional discrimination."). Bevan's use of the evidence in an attempt to demonstrate
a company-wide trend toward placing younger persons in director-level positions and
eliminating older persons after the reorganization was permissible. See id. at 1059
("company-wide statistics are useful in establishing the presence or absence of a
general climate of age bias"). While Bevan's charts were not competent as statistical
proof of intentional discrimination, they were admissible as probative circumstantial
evidence of pretext to be considered with all other evidence of pretext.
      Honeywell argues that the statistical evidence is not probative because it fails to
analyze the treatment of comparable employees by a common decisionmaker. Bevan's
charts demonstrate the age differences between directors before and after the
reorganization of the three major divisions into the single unit named H&BC. All of
Bevan's charts involve age comparisons between director-level persons before the
reorganization and director-level positions after the formation of the H&BC. There was


                                           14
evidence in this case that at least one of Bevan's adverse employment decisions (the
removal of Bevan from his director-level position in the new H&BC organization) was
taken at the specific direction of Rosso, the new president of the H&BC. Rosso, as
president of the new organization, was a common decisionmaker to all director-level
positions in the H&BC.

        Certainly, "statistics must evaluate comparable employees to be meaningful
indicators of pretext," Schultz v. McDonnell Douglas Corp., 105 F.3d 1258, 1259 (8th
Cir. 1997), petition for cert. filed, (U.S. May 21, 1997) (No. 96-1855), and "statistical
evidence that does not reflect significant differences among employees would be
prejudicial and misleading." Id. at 1259-60. When a director-level employee claims
age discrimination, use of company-wide statistics may provide the only comparisons
available. It is significant that Bevan was not terminated for poor performance, which
would be a significant difference between Bevan and other director-level employees,
see id., and Bevan presented evidence to rebut Honeywell's assertion that he was
selected for adverse employment action because of his personality. This record
provides no other substantial differences between Bevan and the director-level
employees in his charts. Cf. Hopper v. Hallmark Cards, Inc., 87 F.3d 983, 989 (8th
Cir. 1996) (statistics comparing managerial-level employees discharged from other
units and excluding other younger managers discharged just prior to the data did not
raise a reasonable inference of age discrimination). Furthermore, Honeywell took full
advantage of its opportunity to impeach the validity, impact, and meaning of the
information on those charts. Although the district court found the charts to be
unpersuasive in considering the MHRA claim, the jury, a separate fact finder, could
reasonably and independently determine to afford them more weight in deciding the
ADEA claim. We conclude that the charts were probative and not unfairly prejudicial
or misleading.

      Viewing the totality of the circumstances in the light most favorable to Bevan,
we conclude that he presented sufficient evidence from which a reasonable jury could

                                           15
find that Honeywell discriminated against Bevan on the basis of his age. His
outstanding performance record that mentions no major interpersonal problems,
Larkin's age-based statement about Bevan, the company's lack of effort at providing
him a new opportunity, the youth movement in the company evidenced by Ruppel's
memo, Bevan's charts, Knoblauch's letter to Rosso, and Pederson's observations, and
also the proof of the elements of the prima facie case all combined to raise an inference
of age discrimination sufficient to allow this case to go to the jury. As we stated in
Morgan, "[a]lthough this was a close case, our task on review is not to act as the trier
of fact." 897 F.2d at 951.

                             B. Motion for a New Trial

      Honeywell contends that it is entitled to a new trial because the verdict is against
the greater weight of the evidence. Honeywell also contends that the district court
improperly admitted into evidence Bevan's statistical evidence and the double hearsay
statement attributed to Larkin.

        "We review the denial of a motion for a new trial under an abuse of discretion
standard." Schultz, 105 F.3d at 1259. A district court's determination that the verdict
is not against the weight of the evidence is virtually unassailable. Pulla v. Amoco Oil
Co., 72 F.3d 648, 656 (8th Cir. 1995). The admission of evidence is committed to the
sound discretion of the district court, and we review only for a clear abuse of
discretion. Slathar v. Sather Trucking Corp., 78 F.3d 415, 419 (8th Cir.), cert. denied,
117 S. Ct. 179 (1996); O'Dell v. Hercules, Inc., 904 F.2d 1194, 1200 (8th Cir. 1990).
A new trial is not warranted on the basis of an evidentiary ruling unless the evidence
was so prejudicial that a new trial would likely produce a different result. Schultz, 105
F.3d at 1259.




                                           16
       For the reasons set forth above, we conclude that the verdict is not against the
weight of the evidence, and no evidentiary ruling the district court made warrants a new
trial.

                                     C. Front Pay

       In this case, the parties stipulated that reinstatement would not be a proper
remedy. Thus, there is no dispute that an award of front pay in lieu of reinstatement is
the proper remedy here. Over Honeywell's objection, the district court submitted the
calculation of the front pay award to the jury. Honeywell contends that this was error,
and we agree.

       Our recent opinion in Newhouse v. McCormick & Co., 110 F.3d 635, 641-43
(8th Cir. 1997), controls this issue. Front pay is an equitable issue to be determined by
the district court, taking all aspects of the case into consideration and reducing the
award to its present value. See id. at 641. In Newhouse, we held that the
determination of what amount of front pay to award is an equitable issue to be decided
by the district court. Id. at 643. While the district court may, in its equitable
discretion, submit the issue to a jury in an advisory capacity, the district court in this
case improperly submitted the issue to the jury for a conclusive determination. Because
this is contrary to our opinion in Newhouse, we reverse and remand this issue,
instructing the district court to calculate a proper front pay award.

                       D. The Minnesota Human Rights Act

      Bevan cross-appeals the district court's finding in the MHRA claim that
Honeywell did not engage in intentional age discrimination. The district court found
that Bevan did not successfully rebut the legitimate nondiscriminatory reasons for
Honeywell's adverse employment decisions. Bevan argues that he produced sufficient
evidence to prevail on his claim.

                                           17
        The Minnesota Supreme Court has consistently construed MHRA claims in
accordance with federal precedent, thus we review the MHRA claim under the same
standards as we applied to the ADEA claim. Rothmeier v. Investment Advisors, Inc.,
85 F.3d 1328, 1338-39 (8th Cir. 1996); Feges v. Perkins Restaurants, Inc., 483 N.W.2d
701, 710 (Minn. 1992). With respect to Bevan's ADEA claim, we affirmed the denial
of Honeywell's motion for judgment as a matter of law under the standard that judgment
as a matter of law is not appropriate "if reasonable persons could differ as to the
conclusions to be drawn from the evidence." Ryther, 108 F.3d at 844 (internal
quotations omitted). Two different fact finders may permissibly draw differing
inferences from the same evidence. The district court was free to give greater weight
to the evidence supporting Honeywell's articulated legitimate nondiscriminatory reasons
than to Bevan's evidence of pretext. We have reviewed the record and conclude that
the district court's findings and conclusions on the MHRA claim are supported by the
record. Once again, we recognize our role is not to be the trier of fact.

                                 E. Attorney's Fees

       We review an award of attorney's fees in an ADEA suit under an abuse of
discretion standard. Lee v. Rapid City Area Sch. Dist. No. 51-4, 981 F.2d 316, 319-20
& 333 (8th Cir. 1992) (en banc).

       Bevan sought attorney's fees in the amount of $440,394.66. The jury awarded
Bevan $275,217 on his ADEA claim, Bevan received no liquidated damages, we are
remanding the front pay award for a proper calculation by the district court, and the
district court determined that Honeywell did not intentionally discriminate against
Bevan in violation of the MHRA. The district court awarded Bevan $250,000 in
attorney's fees. Bevan contends that the district court abused its discretion by not
awarding the full amount of attorney's fees that Bevan claimed.




                                          18
       The district court criticized both parties for "over-lawyering" this case and
concluded that the fee application did not accurately reflect "the relationship between
the amount of the fee [requested] and the results obtained" in the suit. Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). It is appropriate for the district court in making
a fee award to balance "the amount of effort against the plaintiff's overall success."
ARC v. Schafer, 83 F.3d 1008, 1011 (8th Cir.) (citing Hensley), cert. denied, 117 S.
Ct. 482 (1996). "Partial success may justify only a partial fee award." Id. The district
court adequately conducted this analysis, reviewing all the circumstances of this case,
and made an appropriate equitable adjustment to the fee request. The district court
provided a rational reason for the reduction of the award and did not abuse its
discretion.

                                   III. Conclusion

       Accordingly, we vacate the jury's award of front pay, reverse the district court's
decision to submit the front pay issue to the jury, and remand for the district court to
calculate a proper front pay award in its equitable discretion. In all other respects, we
affirm the judgment of the district court.

LAY, Circuit Judge, concurring and dissenting.

       I concur in Judge Hansen's excellent opinion with one exception. I dissent from
the vacation of the jury's award of front pay and the remand to the district court to
calculate a proper front pay award in its discretion.

      The court holds that our recent opinion in Newhouse v. McCormick & Co., 110
F.3d 635 (8th Cir. 1997), controls this issue. I must respectfully disagree. In
Newhouse, after a jury had returned a plaintiff's verdict finding age discrimination
under the ADEA, the district court faced the equitable decision whether to reinstate the
employee or to award front pay. Under those circumstances, the district court does not

                                           19
face the choice between reinstatement and front pay until the jury has made a finding
of age discrimination under the ADEA. After the jury determines liability, the jury
ordinarily will be discharged and the court then will hear from the parties regarding
whether to reinstate or to award front pay.

       In the present case the district court was not faced with that decision because the
parties stipulated before the jury was instructed that reinstatement was inappropriate.
The only issue remaining was whether the ADEA was violated and, if so, what the
award of front pay should be. The court determined to submit this as a legal claim to
the jury under appropriate instructions, and the jury included front pay as part of its
award.
       Under these circumstances, I feel the proper application of the Supreme Court's
decision in Lorillard v. Pons, 434 U.S. 575 (1978), requires a jury determination of
front pay. In Lorillard, the Court interpreted 29 U.S.C. § 626(c)(2) and found that
Congress intended to confer a right to trial by jury in ADEA actions to determine
"amounts owing" as a result of a violation of the Act. The Court did not specifically
decide whether the jury should determine front pay. In Dominic v. Consolidated
Edison Co., 822 F.2d 1249 (2d Cir. 1987), cited with approval in Newhouse, the
Second Circuit held that both the determination of whether to award front pay and how
much front pay to award are questions reserved to the district court's equitable
discretion. However, Dominic and Newhouse are dissimilar to this case in one
important regard: Neither case reached the court on the stipulated fact that
reinstatement was not an appropriate remedy. The oblique discussions in Dominic and
Newhouse do not mandate that determining the amount of front pay, once the question
of reinstatement is out of the case, is an equitable issue suitable only for a judge's
determination. Determining an appropriate amount of front pay to be awarded involves
consideration of factual circumstances, and is an exercise juries perform in many kinds
of litigation where litigants seek future wages. See, e.g., Martinez v. Union Pacific R.
R., 82 F.3d 223 (8th Cir. 1996) (jury in FELA action determining injured employee's


                                           20
impaired future earning capacity at particular employment); United Paperworkers Int'l
Union v. Champion Int'l Corp., 81 F.3d 798 (8th Cir. 1996) (reversing on other grounds
where jury in Labor Management Relations Act case awarded front pay to improperly
discharged employee); Gander v. FMC Corp., 892 F.2d 1373 (8th Cir. 1990) (finding
evidentiary support in products liability case for jury's award of past and future lost
wages). The fact that we are dealing with front pay under the ADEA should make little
difference when the choice of reinstatement is precluded. The issue at that point
becomes a legal claim to be determined under the facts of the case.

        To avoid any misunderstanding, I do not urge that once a judge determines that
reinstatement is not a proper remedy that a jury should be recalled to determine the
issue of front pay. In that situation, the award and amount of front pay is an integral
concern to be balanced together with the court's equitable discretion as to whether to
order reinstatement. That situation lends itself to the court's equitable discretion.
However, where the parties themselves formulate the issue by removing reinstatement
as an option, there is no equitable issue remaining and the factual calculation of front
pay becomes a purely legal claim that should be decided by the jury. Cf. Dairy Queen,
Inc. v. Wood, 369 U.S. 469 (1992) (holding money judgment incidental to injunctive
relief is legal claim triable by jury). If the district court determines the award cannot
be supported by the facts of the particular case, the court may reduce the award
accordingly.

       In the present case, the court reviewed the jury's front pay award and entered
judgment upon the verdict. Under the circumstances, it seems to me inefficient and
improper under the law to vacate the award only to have the trial court effect its own
fact finding to decrease or increase an award already carefully considered.




                                           21
       I therefore dissent. I feel the order vacating the award of front pay is contrary
to the ADEA and the Supreme Court's interpretation of the Act in Lorillard.2

      A true copy.

             Attest:

                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
         Since I feel that the statute provides for legal relief under the circumstances,
it is not necessary to comment upon whether the Seventh Amendment requires a
jury trial on this fact issue.

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