F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 29 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
PAULA BALLARD,
Plaintiff-Appellee,
v. Nos. 99-7132 & 00-7004
MUSKOGEE REGIONAL MEDICAL
CENTER,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 99-CV-21-P)
Submitted on the briefs:
Terry Todd, Leslie C. Weeks, and Elizabeth Hall of Rodolf & Todd, Tulsa,
Oklahoma, for Defendant-Appellant.
James G. Wilcoxen of Wilcoxen & Wilcoxen, Muskogee, Oklahoma, and Nathan
H. Young, III, of Tahlequah, Oklahoma, for Plaintiff-Appellee.
Before BRORBY , McKAY , and KELLY , Circuit Judges.
McKAY , Circuit Judge.
I. Introduction
Plaintiff, a psychological technician at Defendant Muskogee Regional
Medical Center (an entity of the city of Muskogee), brought an action against
Defendant under 42 U.S.C. § 1983 for First Amendment retaliation. Plaintiff
claimed that she was terminated because she notified the County Health
Department regarding the poor condition of a patient that Defendant had received
from a referring facility. Defendant claimed that Plaintiff was terminated because
of her poor work performance, including misrepresenting herself as a nurse to
others and encouraging a known suicidal patient to jump out of a window. At the
close of all evidence, Defendant moved for judgment as a matter of law. The
jury, answering special interrogatories, found that (1) Plaintiff’s speech was a
substantial or motivating factor in her termination and (2) she would have been
terminated absent her exercise of speech. The jury further advised that she be
awarded $8,150 in front pay damages. The district court denied Defendant’s
motion for judgment as a matter of law and awarded Plaintiff $8,150 in front pay.
The court also awarded Plaintiff attorney fees under 42 U.S.C. § 1988(b). We
exercise jurisdiction pursuant to 28 U.S.C. § 1291.
Defendant contends that the district court’s denial of its motion for
judgment as a matter of law was error and requires reversal. Defendant further
argues that awards of front pay and attorney fees should be set aside.
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II. Free Speech Retaliation
We review de novo a district court’s disposition of a motion for judgment
as a matter of law, applying the same standard as the district court. Such a
judgment is warranted only if the evidence points but one way and is susceptible
to no reasonable inferences supporting the party opposing the motion. See Baty
v. Willamette Indus., Inc. , 172 F.3d 1232, 1241 (10th Cir. 1999) (quotations and
citations omitted).
A trio of Supreme Court decisions fashions the four-step test that guides
our inquiry. See Connick v. Meyers , 461 U.S. 138 (1983); Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle , 429 U.S. 274 (1977); Pickering v. Bd. of Educ. , 391
U.S. 563 (1968) . For a public employee to prevail on a First Amendment
retaliation claim against her employer, the employee must prove: (1) the
employee’s speech involved a matter of public concern, see Connick , 461 U.S. at
146; (2) the employee’s interest “in commenting upon matters of public concern”
is greater than the interest of the public employer “in promoting the efficiency of
the public services it performs through its employees,” Pickering , 391 U.S. at
568; and (3) the speech was a “substantial factor” or a “motivating factor” in the
adverse employment decision, Mt. Healthy , 429 U.S. at 287. See also Dill v. City
of Edmond , 155 F.3d 1193, 1201-02 (10th Cir. 1998); Gardetto v. Mason , 100
F.3d 803, 811 (10th Cir. 1996). Finally, if the employee meets the requirements
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of these three prongs, the burden then shifts to the employer to show “by a
preponderance of the evidence that it would have reached the same decision . . .
even in the absence of the protected conduct.” Mt. Healthy , 429 U.S. at 287.
The Court explained the purpose of the fourth step of the inquiry:
A borderline or marginal candidate . . . ought not to be able, by
engaging in [constitutionally protected] conduct, to prevent his
employer from assessing his performance record and reaching a
decision not to rehire on the basis of that record, simply because the
protected conduct makes the employer more certain of the
correctness of its decision.
Mt. Healthy , 429 U.S. at 286.
In the instant action, Defendant demonstrated that Plaintiff’s termination
would have occurred solely as a result of her poor performance at the hospital.
The district court noted: “The verdict form . . . reflects the jury’s finding that
Defendant would have terminated Plaintiff even in the absence of the exercise of
her right to free speech.” (Br. Aplnt., App. A). Despite this finding, however,
the court denied Defendant’s motion for judgment as a matter of law. The only
explanation offered by the court was that the jury’s finding “does not negate the
constitutional violation which occurred, and according to the Civil Rights Act of
1991, . . . merely affects the Plaintiff’s damages.” (Br. Aplnt., App. A).
The district court’s determination is contrary to established caselaw. The
public employer’s “anyway” defense—if established by a preponderance of the
evidence—acts as an absolute bar to liability, not merely a factor in awarding
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damages. The Supreme Court has said that in First Amendment retaliation
actions, “the government can escape liability by showing that it would have taken
the same action even in the absence of the protected conduct.” Bd. of County
Comm’rs, Wabaunsee County, Kan. v. Umbehr , 518 U.S. 668, 675 (1996)
(emphasis added) (citing Mt. Healthy , 429 U.S. at 287). We have also stated that
“defendants would be relieved from liability if they can establish that they would
have reached the same decision even in the absence of plaintiff’s speech.” Copp
v. Unified Sch. Dist. No. 501 , 882 F.2d 1547, 1554 (10th Cir. 1989) (emphasis
added).
In this case, the jury specifically found that “Defendant would have
terminated Plaintiff even in the absence of the exercise of her right to free
speech.” (Br. Aplnt., App. A). Thus, Defendant met its burden and is relieved
from liability in terminating Plaintiff.
III. Front Pay Awards
Defendant further asserts that the district court erred in awarding Plaintiff
$8,150 in front pay. An award of front pay for claims under § 1983 is an
equitable remedy; thus, the district court has discretion to decide whether such an
award is appropriate. See Mason v. Okla. Tpk. Auth. , 115 F.3d 1442, 1458 (10th
Cir. 1997) (citing Starrett v. Wadley , 876 F.2d 808, 824 (10th Cir. 1989)). “That
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discretion, however, should be measured against an anti-discrimination statute’s
purpose to make the plaintiffs ‘whole.’” Davoll v. Webb , 194 F.3d 1116, 1143
(10th Cir. 1999) (citing Carter v. Sedgwick County, Kan. , 36 F.3d 952, 957 (10th
Cir.1994), and Pitre v. W. Elec. Co. , 975 F.2d 700, 704 (10th Cir.1992)). We
thus review the court’s award of front pay for an abuse of discretion. See Mason ,
115 F.3d at 1458.
As set forth above, the district court erred in holding Defendant liable
despite the jury finding that Defendant had proven its “anyway” defense. In
addition, the court abused its discretion in awarding equitable damages to
Plaintiff despite Defendant’s inculpability. Plaintiff did not need to be made
“whole” because Defendant had caused no harm, according to the jury verdict. It
is impertinent that the jury advised an award of front pay, since such
determinations are made solely by the court. See McCue v. Kan. Dep’t of Human
Res. , 165 F.3d 784, 791 (10th Cir. 1999).
We have previously adopted the reasoning that front pay can be refused in
part when the fact finder determines that the employee “would have been
legitimately laid off sometime before trial.” Dalal v. Alliant TechSystems, Inc. ,
182 F.3d 757, 759 n.2 (10th Cir. 1999). The Supreme Court has even held that
evidence of employee wrongdoing discovered by an employer after discharge and
sufficient for termination renders reinstatement or front pay “inequitable and
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pointless.” McKennon v. Nashville Banner Publ’g Co. , 513 U.S. 352, 361-62
(1995); see also Medlock v. Ortho Biotech, Inc. , 164 F.3d 545, 554-55 (10th Cir.
1999). Wrongdoing known to the employer before termination and found by the
jury should have no less an effect. Thus, Defendant is not liable to Plaintiff for
front pay.
IV. Attorney Fees Under § 1988(b)
Defendant also challenges the district court’s award of attorney fees to
Plaintiff pursuant to 42 U.S.C. § 1988(b). Defendant contends that Plaintiff was
not the “prevailing party” in this litigation and therefore is not entitled to an
award of attorney fees under § 1988(b). We review a district court's decision to
award or deny attorney's fees for an abuse of discretion. See Withiam v. Baptist
Health Care of Okla., Inc. , 98 F.3d 581, 584 (10th Cir. 1996). “‘Although the
ultimate decision to award fees rests within the district court's discretion, any
statutory interpretation or other legal conclusions that provide a basis for the
award are reviewable de novo.’” Dalal , 182 F.3d at 759-60 (quoting Phelps v.
Hamilton , 120 F.3d 1126, 1129 (10th Cir. 1997)).
The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988,
provides in relevant part: “In any action or proceeding to enforce a provision of
sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its
discretion, may allow the prevailing party, other than the United States, a
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reasonable attorney’s fee as part of the costs.” Id. at § 1988(b). Construing the
Act, the Supreme Court has stated that “in order to qualify for attorney's fees
under § 1988, a plaintiff must be a ‘prevailing party.’” Farrar v. Hobby , 506 U.S.
103, 109 (1992). The Court has given an expansive definition to “prevailing
party.” “In short, a plaintiff ‘prevails’ when actual relief on the merits of his
claim materially alters the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 111-12.
In addition, “‘plaintiffs may be considered “prevailing parties” for attorney’s fees
purposes if they succeed on any significant issue in litigation which achieves
some of the benefit the parties sought in bringing suit.’” Hensley v. Eckerhart ,
461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe , 581 F.2d 275, 278-79
(1st Cir. 1978)). In Phelps , we adopted Justice O’Connor’s “three-part test to
determine whether a prevailing party achieved enough success to be entitled to an
award of attorney’s fees.” Phelps , 120 F.3d at 1131. “The ‘relevant indicia of
success’ in such cases are: (1) the difference between the judgment recovered
and the recovery sought; (2) the significance of the legal issue on which the
plaintiff prevailed; and (3) the public purpose of the litigation.” Id. at 1131
(quoting Farrar , 506 U.S. at 121-22 (O’Connor, J., concurring)).
Applying this analysis to the case at bar, Plaintiff has not achieved
sufficient success to entitle her to attorney fees. Plaintiff’s litigation has neither
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altered her legal relationship to Defendant nor modified Defendant’s behavior.
Plaintiff has not recovered relief, vindicated a legal issue, or served an important
public purpose. We have previously held that when a claim of free speech
retaliation under § 1983 is reversed on the merits, the court must also reverse an
award of attorney fees to the plaintiff. See Withiam , 98 F.3d at 584. We do so
now.
V. Conclusion
For the foregoing reasons, the decision of the district court is REVERSED
and REMANDED to that court with direction to set aside the front pay award, set
aside the award of attorney fees, and enter judgment in favor of the Defendant.
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