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Billingsley v. BFM Liquor Management6/14/2002
I. NATURE OF CASE
In his fifth amended petition filed in the district court for Douglas County, Richard A. Billingsley alleged he had been discriminated against in the workplace on the basis of age. Billingsley sought damages, unpaid wages, equitable relief, and attorney fees pursuant to Nebraska's Act Prohibiting Unjust Discrimination in Employment Because of Age (age discrimination act), Neb. Rev. Stat. §§ 48-1001 to 48-1010 (Reissue 1998), and the Nebraska Wage Payment and Collection Act (wage payment act), Neb. Rev. Stat. §§ 48-1228 to 48-1232 (Reissue 1998). The named defendants were BFM Liquor Management, Inc., doing business as Brandeis Food Management, and Brandeis Catering, Inc.
Following trial, the jury awarded Billingsley $59,963.93 in damages on his age discrimination claim and $4,469.88 on his unpaid wage claim. An appeal was taken. Because the district court had not ruled on Billingsley's request for equitable relief, the purported appeal was dismissed for lack of a final, appealable order. Billingsley v. BFM Liquor Mgmt., 259 Neb. 992, 613 N.W.2d 478 (2000). Thereafter, the district court considered Billingsley's requested equitable relief. The district court denied Billingsley's request for front pay or reinstatement. The district court awarded Billingsley attorney fees and postjudgment interest. BFM Liquor Management, Inc., and Brandeis Catering, Inc., appeal, and Billingsley cross-appeals. We affirm.
II. STATEMENT OF FACTS
This is the second appearance of this case in this court. See Billingsley, supra. We repeat the facts recited in Billingsley which are necessary to this opinion.
Billingsley was employed by BFM Liquor Management, Inc., which also does business as Brandeis Food Management (BFM), and Brandeis Catering, Inc. (BCI), businesses determined by the district court as a matter of law to be a "common enterprise" under § 48-1002 of the age discrimination act. The record reflects that in 1993 and 1994, BFM employed over 25 people. In those same years, defendants claim BCI employed fewer than 25 people. Billingsley was hired on August 24, 1988, to develop BFM's catering operations on the premises of the Ak-Sar-Ben coliseum in Omaha. Subsequently, an offsite catering company was separately incorporated as BCI, and Billingsley was given additional responsibilities. Billingsley testified that during his tenure with defendants, he never received an oral or written reprimand, and that he had always performed his duties satisfactorily. As defendants' catering operations grew, more people were hired to assist Billingsley.
Tom Wolf was hired in June 1993 to assist Billingsley with the sales of catering engagements. Helmuth Dahlke, Billingsley's supervisor, informed Billingsley of the decision to hire Wolf. Wolf's employment arrangement was such that he was to be paid a commission on the sales of catering events he arranged. At that time, Wolf was 30 years of age.
In December 1993, Billingsley negotiated an employment agreement by which he would be paid, in addition to his salary, 3 percent of the gross monthly sales of BFM's off-premises catering and 2 percent of the gross monthly sales of BFM's onsite catering. Billingsley claims that he never received any of his commission after this agreement was finalized in January 1994. This employment agreement was in effect at the time of Billingsley's notice of termination of employment on May 23, 1994.
On May 19, 1994, Billingsley attended a management meeting called by Dahlke. At this meeting, Billingsley was given a new organizational chart for BFM's operations at Ak-Sar-Ben, pursuant to which he was informed that he would no longer report to Dahlke
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