UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-20179
SHARON M. WILLIAMS,
Plaintiff-Appellee,
VERSUS
TRADER PUBLISHING COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
July 24, 2000
Before JONES, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:
Defendant-Appellant Trader Publishing Company (“Trader”)
appeals from the district court judgment based on a jury verdict in
favor of Plaintiff-Appellee Sharon M. Williams (“Williams”) finding
Williams had been discharged by Trader due to gender discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq. Trader challenges the jury’s finding of
gender discrimination and compensatory damages, the award and
amount of punitive damages, and the award and amount of attorney’s
fees and interest. For the reasons assigned, we affirm in part and
reverse in part the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Williams was hired by Trader on April 27th, 1989 as a
sales representative. From 1989 through 1995, Williams assumed
multiple positions for Trader, during which time she received
several raises and performance based bonuses. In 1993, Williams
served as acting general manager for the Houston office of Trader.
Although Williams applied for the position of full-time general
manager of the Houston office, in 1994 Trader hired Ron Haas to
fill the position on a permanent basis. In 1995 Trader fired
Williams and she brought this suit.
Williams contends that Haas treated male employees more
favorably than female employees in the Houston office of Trader.
For example, she contends that Haas criticized female employees’
style of dress and made recommendations to change it during visits
by his supervisor. In addition, Williams contends that Haas acted
friendlier to male employees than female employees. Specifically,
Haas discussed problems with male employees’ work openly and
informally. On the other hand, he confronted female employees with
criticisms of their work in formal conference room meetings. Haas
2
disputes that he treated employees differently on the basis of
gender.
Trader contends that Williams was discharged due to a
pattern of unacceptable behavior rather than because of gender.
Specifically, Trader contends that Williams impaired office morale
by disparaging fellow employees. For example, Trader contends that
Williams called a co-worker a “bitch” and that she often addressed
Haas, her supervisor, as “Ron, Ron, the leprechaun.” In addition,
Trader contends that Williams circulated rumors about her impending
dismissal that further caused dissension in the Houston office and
falsified an examination score of a fellow employee. Trader
contends that it was in response to a pattern of such disruptive
behavior that Williams was dismissed.
In response to Trader’s accusations of “disruptive
behavior”, Williams introduced evidence of similar behavior by
other employees that had not resulted in summary dismissal.
Several former co-workers, both male and female, testified that
they had called the same co-worker a “bitch” without being
terminated. In addition, Williams introduced evidence that a male
employee had discussed rumors of his dismissal and challenged
Haas’s authority, but was not immediately terminated; rather, Haas
confronted the employee and offered him an opportunity to respond
to the allegations. It was only after this employee admitted to
the behavior that he was dismissed. Williams also introduced
Trader’s employee manual that stated as a general policy that
3
employees should receive an oral warning and then a written
reprimand for disruptive behavior prior to dismissal -- and that
while male employees were given the benefit of this procedure, she
was not.
Trader argues that the situations were different in that
Williams had developed a pattern of disruptive behavior which
required an immediate discharge in deviation from Trader’s standard
procedures. On cross-examination, however, Haas admitted that
generally the only disruptive behavior severe enough to justify an
immediate termination by Haas rather than by his superior, Sunny
Sonner (who had the ultimate authority to fire employees of
Williams’s level), was drunkenness at work or some other similarly
severe disruption. However, Trader contends that Haas actually did
not fire Williams, but that Haas reported Williams’s disruptive
behavior to Sonner and that Sonner (who is a woman) authorized the
discharge. Williams testified that Haas fired her directly without
following Trader’s policy or procedure and without obtaining his
supervisor’s prior approval. Williams further testified that Haas
did not afford her the same opportunity to admit or deny
allegations against her, as Haas had given to an accused male
employee, and that Haas had her escorted out of the building by
security guards immediately after discharging her.
Williams filed the present suit in October 1996. After
a jury trial she was awarded damages for back pay in the amount of
$106,000, future earnings of $27,160, compensatory damages for pain
4
and suffering of $100,000, and punitive damages of $100,000. In
addition, the district court ordered prejudgment interest on back
pay and compensatory damages at a rate of ten percent and post-
judgment interest at the rate of 5.407%, as well as attorney’s fees
of $61,479.54. Trader timely filed a notice of appeal.
II. STANDARD OF REVIEW
In Title VII cases, once the plaintiff has established a
prima facie case and the case been decided on the merits, the only
factual review available at the appellate level is whether, taking
all inferences and evidence in the light most favorable to the
verdict, the evidence points so strongly in favor of the defendant-
appellant that it is entitled to judgment as a matter of law. See
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 588
(5th Cir. 1998), reh’g en banc granted and opinion vacated 169 F.3d
215, opinion reinstated 182 F.3d 333 (5th Cir. 1999) (“after a case
has been fully tried on the merits, we no longer focus on the
McDonnell Douglas burden-shifting rubric; the inquiry becomes
whether the record contains sufficient evidence to support the
jury’s ultimate finding of [gender] discrimination”). Accordingly,
if the evidence is sufficient to uphold a jury verdict under Title
VII, the appellate court should affirm both the verdict and the
award of damages. See Smith v. Berry Co., 165 F.3d 390, 394 (5th
Cir. 1999).
5
III. DISCUSSION
A.
To prove discrimination, a plaintiff may use
circumstantial evidence that she has been treated differently than
similarly situated non-members of the protected class. See Polanco
v. City of Austin, Texas, 78 F.3d 968, 977 (5th Cir. 1996). Trader
contends that to satisfy the “similarly situated” requirement, the
situations of the non-protected class members must be more than
“similar”, they must be “nearly identical.” See Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1090 (“[t]o establish a prima facie
case in this manner, Mayberry must show that white employees were
treated differently under circumstances ‘nearly identical’ to his”)
(citing Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir.
1991)). In the present case, Trader contends that the
circumstances of the male employees’ treatment introduced by
Williams were not “nearly identical” to Williams’s treatment
because (1) there was no evidence that the supervisors knew of the
male employees’ conduct and (2) that the men had not established a
pattern of disruptive behavior as Williams had. In support, Trader
cites a recent decision by this circuit holding that a non-tenure
track professor is not “similarly situated” to a tenure track
professor. See Krystek v. University of So. Mississippi, 164 F.3d
251, 257 (5th Cir. 1999).
6
Although Trader contends on appeal that the evidence
pertaining to these male employees is not admissible because they
were not in situations “nearly identical” to that of Williams,
Trader itself introduced the same evidence to show that it had
fired male employees for disruptive behavior in support of its
motion for summary judgment. Evidence may only be introduced at
the summary judgment phase of a trial if the evidence would be
admissible at trial. See FED.R.CIV.P. 56(e) (“Supporting and
opposing affidavits . . . shall set forth such facts as would be
admissible in evidence). Thus, by introducing the evidence
relating to these male employees, Trader took the position before
the district court that the evidence would be relevant and
admissible at trial to show its parity of treatment of employees of
both genders.
After introducing this evidence in support of its motion
for summary judgment, Trader has argued in its motion in limine and
on appeal that the evidence cannot be introduced properly by
Williams to show that the similarly situated male employees were
afforded pre-termination reprimands or hearings that she was denied
as proof of gender discrimination. However, because Trader offered
the same comparables for purposes of its motion for summary
judgment, it cannot persuasively argue that those employees were
not similarly situated to Williams. The trial court did not err in
admitting the evidence.
7
B.
Trader contends that Williams failed to establish a prima
facie case of gender discrimination under Title VII because she
could not prove that she was replaced by a member of a non-
protected class. However, it is well settled that, although
replacement with a non-member of the protected class is evidence of
discriminatory intent, it is not essential to the establishment of
a prima facie case under Title VII. See Hornsby v. Conoco, Inc.,
777 F.2d 243, 246 (5th Cir. 1985) (“This court has previously held
that the single fact that a plaintiff is replaced by someone within
the protected class does not negate the possibility that the
discharge was motivated for discriminatory reasons”). Accordingly,
that Williams may not have established that she was replaced by a
male employee does not necessarily mean that she failed to
establish her prima facie case.
C.
Trader contends that the district court abused its
discretion1 in admitting evidence with respect to Williams’s
general work performance because the sole issue at trial was
whether Williams committed the specific acts for which Trader
contends Williams was dismissed. Trader cites LaMontagne v.
American Convenience Products, Inc., 750 F.2d 1405, 1414 (7th Cir.
1
In general, evidentiary decisions of the district court are reviewed for
abuse of discretion only. See Stokes v. Georgia-Pacific Corp., 894 F.2d 764, 767
(5th Cir. 1990).
8
1984) for the proposition that, when an employer has stated
specific reasons for dismissal, evidence of generally satisfactory
work performance in the past does not refute such evidence and thus
its admission for such purpose is reversible error if such evidence
prejudiced the defendant. In LaMontagne, however, the appellate
court affirmed a judgment notwithstanding the verdict in favor of
the employer and rejected the employee’s argument that the evidence
of satisfactory job performance should be considered as evidence
that the employer’s reason for its employment decision was a
pretext. See id. at 1414. Thus, the LaMontagne court did not
consider whether the introduction of such evidence would have been
reversible error because that issue was not raised by the
employee’s appeal.
In the present case, Williams contends that she
introduced evidence of prior satisfactory job performance not to
rebut Trader’s allegations of specific improper acts, but rather to
establish an element of her prima facie Title VII case, i.e., that
she was qualified for the position at the time she was discharged;
by way of contrast, she used evidence of conduct by similarly
situated male employees to prove that the proffered non-
discriminatory reason for discharge, the alleged pattern of
disruptive behavior, was a pretext. Nonetheless, because
Williams’s qualifications for the position were stipulated prior to
the admission of the evidence, Trader argues that Williams’s job
9
performance evidence was irrelevant and should have been excluded.
Assuming without deciding that the trial court may have erred in
admitting the evidence, we conclude that under the circumstances of
the present case, although the evidence was cumulative and could
have been excluded, its admission was not sufficiently prejudicial
to amount to reversible error.
D.
Trader contends that compensatory damages awarded by the
jury for emotional distress were not supported by the evidence
because Williams’s testimony was the only evidence that tended to
show these injuries. It is true that compensatory damages for
emotional distress may only be awarded when specific evidence of
actual harm is introduced. See Farpella-Crosby v. Horizon Health
Care, 97 F.3d 803, 808 (5th Cir. 1996) (citing Carey v. Piphus, 435
U.S. 247 (1978)). This circuit has held, however, that the
testimony of the plaintiff alone may be enough to satisfy this
requirement. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046
(5th Cir. 1998); Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th
Cir. 1996).2 In the present case, Williams testified specifically
as to her severe emotional distress due to the discharge from her
position at Trader resulting in sleep loss, beginning smoking and
a severe loss of weight. Such evidence, although solely the
2
This circuit in Forsyth upheld an award of $100,000, the precise amount
awarded in the present case, based solely on the testimony of the plaintiff. See
Forsyth, 91 F.3d at 774 (“Judgments regarding noneconomic damages are notoriously
variable; we have no basis to reverse the jury’s evaluation.”).
10
testimony of the plaintiff, is sufficiently specific to support the
jury’s determination of compensatory damages. See id.
Trader also contends that it was reversible error for
Williams to quantify her emotional distress in a dollar amount at
trial without previously disclosing that figure to Trader as
required under Federal Rules of Civil Procedure 26 and 37. We need
not decide whether assigning a dollar figure to emotional distress
damage without previously disclosing the figure is in contradiction
to Rule 26, however.3 Williams did not seek to quantify her
damages at trial with a previously undisclosed dollar value.
Rather, the following colloquy between Williams and her counsel
occurred on direct examination at trial:
Q: Are you asking this jury to award you damages for your
mental anguish?
A: Yes.
* * *
Q: Is there anyone else who is more qualified to tell you
how upset you felt because you were wrongfully
terminated?
A: No.
Q: In your opinion, compensating for your mental anguish,
what is a fair dollar figure?
A: I don’t really know.
3
Since compensatory damages for emotional distress are necessarily vague and
are generally considered a fact issue for the jury, they may not be amenable to
the kind of calculation disclosure contemplated by Rule 26(a)(1)(C). See Burrell
v. Crown Central Petroleum, Inc., 177 F.R.D. 376, 386 (E.D.Tex. 1997).
11
Q: How much money are you asking the jury to award you for
your mental anguish?
A: $100,000.
Williams merely testified as to her mental distress and when asked
for a dollar figure that would fairly compensate her, she answered
“I don’t know.” Only in response to the questions of what amount
was she asking for, information of which Trader was apprised before
trial, did Williams mention the figure of $100,000. Accordingly,
we conclude that regardless of the reference to the dollar figure,
Williams’s testimony was sufficient evidence to uphold the jury’s
determination of damages for mental distress and that her reference
to the amount prayed for did not violate Rule 26.
E.
Title VII provides for the imposition of punitive damages
in intentional discrimination cases if an employer acts with malice
or reckless indifference to an employee’s rights. 42 U.S.C. §
1981a(b)(1). Here, the jury found that Trader discriminated
against Williams with malice or reckless indifference. After
judgment was entered, the Supreme Court revised the standard of
employer liability for punitive damages in Kolstad v. American
Dental Association, _____ U.S. _____, 119 S.Ct. 2118 (1999). As
this court has explained Kolstad, the Supreme Court:
. . . adopts Restatement (Second) of Agency § 217C for
imputing liability for punitive damages; they are
available against a principal only when, inter alia, an
agent employed in a managerial capacity acts in the scope
of employment. 119 S.Ct. at 2126-29. But pursuant to an
12
exception crafted by the Court to the Restatement rule,
such liability may not be imputed when the managerial
agent’s within the scope actions are “contrary to the
employer’s good faith efforts to comply with Title VII”.
Id. at 2129 (quotation omitted).(footnote omitted)
Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 282
(5th Cir. 1999).
Trader’s liability for punitive damages depends on
whether Ron Haas was acting as a managerial employee within his
scope of employment when Williams was discriminated against. Based
on Kolstad, and because the discrimination occurred when Williams
was fired, the answer must be no.4 First, Haas had no authority to
terminate her. In the company hierarchy, the final responsibility
undisputably belonged to Sunny Sonner, since Williams was a
managerial level employee. Sonner fired Williams not just because
Haas recommended it but because of her independent interviews of
Williams and several other witnesses.5 Although Haas delivered the
message of termination to Williams and may have taken credit for
it, he was not the company’s decisionmaker. Second, there was no
evidence that Sonner’s decision was motivated in any way by gender
bias or that she ratified or approved Haas’s discriminatory
treatment. Kolstad, ____ U.S. ____, 119 S.Ct. at 2128. On the
4
Judge Dennis’s dissent avers that Haas had some limited authority to fire
employees for blatant misconduct like on the job drunkenness. This is irrelevant
to Williams’s situation, and no evidence suggests otherwise.
5
Of course, Haas’s gender-biased recommendation to terminate was within his
scope of authority and is sufficient to support a finding that his discrimination
was a reason for Williams’ termination, thus justifying the company’s liability
for actual damages.
13
contrary, Williams had the opportunity to confide in Sonner about
Haas’s discrimination, but she never did so. As Williams was
herself a managerial employee, it would be incongruous, absent most
unusual circumstances, to infer that she could not or need not
resort to in-house means to address her discrimination complaints.
Under these circumstances, the line supervisor’s misconduct cannot
be imputed to Trader. Compare Kimbrough v. Loma Linda Dev. Co.,
183 F.3d 782, 784-85 (8th Cir. 1999) (punitive damage verdict
upheld where general manager turned a blind eye toward or ratified
harassment of lower-level supervisor). Because we reverse the
punitive damage award, it is appropriate to vacate and remand the
attorneys’ fee award for reconsideration by the district court, as
Trader requests.
F.
Trader contends that the district court erred in its
calculation of pre and post-judgment interest. Trader did not
raise this argument before the district court, and therefore we
review the issue solely for plain error. See Marceaux v. Conoco,
Inc., 124 F.3d 730, 734 (5th Cir. 1997). Reversal for plain error
is appropriate only if in our discretion the error is (1) clear,
(2) affects substantial rights and, (3) if not corrected, would
“seriously affect the fairness, integrity, or public reputation of
judicial proceedings.” Id. A district court has discretion to
impose a pre and post-judgment interest award to make a plaintiff
14
whole. See, e.g., Sellers v. Delgado Community College, 839 F.2d
1132, 1140 (5th Cir. 1988). This court previously has approved the
imposition of the federal rate of interest in Title VII cases as
making a plaintiff whole, but has not held that only the federal
rate of interest is appropriate for this purpose.6 Considering the
total circumstances of this case, we conclude that the district
court’s imposition of a somewhat higher rate of interest
(apparently based on the state interest rate), even if error, was
not plain error affecting the fairness, integrity, or public
reputation of judicial proceedings.
Trader also contends that the award of attorney’s fees
should be reduced if the judgment is reversed or if the amount of
damages is reduced. An award of attorney’s fees calculated by the
“lodestar” method which is well less than the amount of
compensatory damages awarded by the jury is not an abuse of
discretion. See Hadley v. VAM PTS, 44 F.3d 372, 375-76 (5th Cir.
1995). Nevertheless, although we have affirmed the award of
compensatory damages, punitive damages made up about 40% of the
overall judgment, and the district court may choose to revisit the
amount of attorneys’ fees in light of Williams’s revised level of
success and the hours that may have been expended by her attorney
for non-compensable punitive damages. Attorneys’ fees should
accordingly be reconsidered on remand.
6
See, e.g., Conway v. Electro Switch Corp., 825 F.2d 593, 600 (5th Cir.
1987).
15
IV. CONCLUSION
For the reasons assigned, the judgment, except as to
punitive damages and attorney’s fees, is AFFIRMED. The award of
punitive damages is REVERSED. The judgment for attorneys’ fees is
VACATED and REMANDED.
DENNIS, Circuit Judge, concurring in part and dissenting in part:
I concur in sections I, II, and III.A - III.D of the majority
opinion. However, I must respectfully dissent from section III.E
and the vacating of the attorney’s fee award in section III.F.
Trader contends that the evidence was insufficient to support
an award of punitive damages because Williams did not demonstrate
that Trader’s actions were “reprehensible.” The Supreme Court and
this circuit have recently rejected the theory that a level of
egregiousness is necessary in awarding punitive damages under Title
VII; all that is required to award punitive damages is that the
employer act with malice or reckless disregard of an employee’s
protected rights. See Kolstad v. American Dental Assoc., 119 S.Ct.
2118, 2124 (1999); Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,
188 F.3d 278, 281-82 (5th Cir. 1999). Under Kolstad, that Trader’s
actions lacked reprehensibility or egregiousness does not preclude
an award of punitive damages. Trader does not dispute that it was
aware of the rights afforded Williams under Title VII and that
there was sufficient evidence to support the jury’s finding that
16
16
Haas acted with sufficient malice or reckless disregard to such
rights to constitute a violation of those rights. Thus, there is
sufficient evidence to support the jury’s award of punitive damages
based on the behavior of Haas.
This is not the end of the punitive damages analysis, however.
The Supreme Court in Kolstad held that liability cannot be imputed
to the employer if (1) the discriminating employee was not a
managerial employee acting in the scope of employment or (2) the
employee acted contrary to the employer’s good-faith efforts to
comply with Title VII. See Deffenbaugh-Williams, 188 F.3d at 282
(citing Kolstad, 119 S.Ct. at 2129).
It is somewhat difficult to discern Trader’s arguments with
respect to the first defense; however, it appears that Trader
contends that any discriminatory action by Haas in dismissing
Williams cannot be imputed to Trader because Haas did not have the
managerial authority to dismiss Williams. Trader asserts, and the
majority agrees, that only the Executive Vice President in charge
of Human Resources, Sunny Sonner, had that authority. Trader
further contends that Williams makes no allegations that Sonner,
the sole managerial agent for purposes of Kolstad, acted in a
discriminatory manner and thus Trader cannot be held liable for
punitive damages. It is true that for liability to be imputed to
an employer, the offending agent must be employed in a managerial
capacity. See Kolstad, 119 S.Ct. at 2128-30. However, as this
17
17
court said in Deffenbaugh-Williams, “whether an agent is a manager
is a ‘fact intensive’ inquiry” and that “ultimately, the . . . jury
will have to decide this issue on the particular facts of the
case.” 188 F.3d at 285 (quoting Kolstad, 119 S.Ct. at 2128)
(quoting L. SCHLUETER & K. REDDEN, PUNITIVE DAMAGES § 4.4(B)(2)(a)).
Thus, the sole issue presented is whether the evidence points so
strongly in favor of Trader that it is entitled to a judgment as a
matter of law on the issue of whether Haas was a managerial agent
of Trader.
In Deffenbaugh-Williams this court found that there was
sufficient evidence to support a factual determination that an
employee was a “managerial agent” in that he (1) had supervisory
authority over the aggrieved employee, (2) terminated her on his
own authority and (3) was in charge of six stores. 188 F.3d at
285. Trader contends that Haas is not a managerial agent, although
he did have supervisory authority over Williams, because (1)
Sonner, not Haas, actually terminated Williams and (2) Haas was
only in charge of one branch office. Although in general only
Sonner had final authority to terminate employees such as Williams,
it is undisputed that Haas did have limited authority to discharge
employees under his supervision for severe disruptive behavior,
such as public drunkenness at work.7 It is also undisputed that
7
The record flatly contradicts the statement of the majority that
only Sonner had the authority to fire Williams; rather than attempt
to address Haas’s limited authority to fire managerial level
18
18
Haas told Williams that he had terminated her employment, that
Williams did not receive any formal oral or written reprimand, and
that Williams was escorted from the Trader office by security
guards upon her termination. This evidence supports Williams’s
contention that it was in actuality Haas who fired her under his
limited emergency authority to do so. Drawing all reasonable
inferences in favor of the verdict, the evidence does not point so
strongly in favor of Trader as to justify granting Trader a
judgment as a matter of law on the issue of whether Haas was a
managerial agent of Trader and whether it was Haas who fired
Williams on his own.8
With respect to the second defense, Trader contends that it
had complied with Title VII in good faith through its “open-door”
policy encouraging aggrieved employees to contact superiors about
possible violations of Title VII. This court addressed a similar
argument in Deffenbaugh-Williams, and held that Wal-Mart’s policy
of encouraging employees to contact higher managers with grievances
does not establish good-faith compliance with Title VII as a matter
of law. 188 F.3d at 286. As in Deffenbaugh-Williams, Trader
presented no evidence of its responses to Williams’s complaints or
employees, the majority chooses to ignore it.
8
Since the jury determined that Haas was a managerial agent of
Trader, it is irrelevant whether Haas acted outside the scope of
his employment in dismissing Williams for purposes of imputing
liability to Trader for punitive damages under Title VII. See
Defffenbaugh-Williams, 188 F.3d at 286 n.6.
19
19
of any specific efforts to comply with Title VII other than the
evidence of its generic open-door policy which Williams had not
used. Accordingly, “the evidence of [Trader’s] antidiscrimination
good faith was certainly not so overwhelming that reasonable jurors
could not conclude otherwise.” Deffenbaugh-Williams, 188 F.3d at
286.9
Trader has not demonstrated that there is insufficient
evidence to support the jury’s determination that Haas acted with
sufficient willfulness to justify punitive damages. Further,
Trader has proved neither that there was insufficient evidence to
support the jury’s determination that Haas was a managerial agent
of Trader nor that it had established a good faith Title VII
compliance system. Accordingly, I respectfully dissent on the
issue of punitive damages and would affirm the punitive damages
award.
With respect to the reversal of attorney’s fees, I disagree
that this court has the authority to reverse the district court’s
award of attorney’s fees merely because it has reversed a portion
of the damages award. This court reviews the district court’s
lodestar calculation for clear error and any departure from the
9
Despite the majority’s implication otherwise, that Williams
failed to avail herself of the open-door policy does not convert it
into a good faith Title VII compliance system. Whether it would
have been preferable for Williams to have addressed a complaint of
Haas’s behavior to Sonner is irrelevant to the issue of whether
Trader had established a good faith Title VII compliance system.
20
20
lodestar calculation for abuse of discretion. See Hadley v. VAM
PTS, 44 F.3d 372, 375-76 (5th Cir. 1995). Thus, the district
court’s calculation of the lodestar amount in the present case,
although it may well have been different had punitive damages not
been awarded, may only be reversed by this court if such
calculation was clearly erroneous.
It is well settled that if a prevailing party under Title VII
is entitled to attorney’s fees for all hours worked on claims,
victorious or not, that “arise out of the same course of conduct
and are not easily separated on the basis of each claim or
defendant.” Cobb v. Miller, 818 F.2d 1227, 1235 (5th Cir. 1987);
see also Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir.
1998); id. At 1056 (Barksdale, J., dissenting) (“However, I
disagree with the majority's implicit conclusion that, when
calculating the lodestar, the magistrate judge did not clearly err
by including hours spent on unsuccessful claims and unnecessary
discovery in pursuit of irrelevant evidence.”). The Supreme Court
has explained this principle as follows:
Where a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee.
Normally this will encompass all hours reasonably
expended on the litigation, and indeed in some cases of
exceptional success an enhanced award may be justified.
In these circumstances the fee award should not be
reduced simply because the plaintiff failed to prevail on
every contention raised in the lawsuit.
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
21
21
Applying Supreme Court and this circuit’s precedent to the
present case, it does not appear that the district court’s lodestar
calculation was clearly erroneous. Williams was victorious on all
her claims of liability and, under the majority opinion, has merely
failed to prevail on appeal in seeking punitive damages against
Trader. Trader has not demonstrated that the legal services of
Williams’s counsel related to the largely parasitic claims of
punitive damages were not totally subsumed within the legal
services necessary to the successful prosecution of the underlying
claims of liability and compensatory damages, let alone show that
such legal services related to punitive damages did not “arise out
of the same course of conduct” or that they are “easily separated
on the basis of each claim or defendant.” Cobb, 818 F.2d at 1235.
That the punitive damages are being reversed on appeal does
not affect this analysis. This circuit has in the past affirmed a
district court’s calculation of attorney’s fees as not an abuse of
discretion despite reversing a punitive damage award that reflected
a significantly greater percentage of the total award than in the
present case. See Stevenson v. TRW, Inc., 987 F.2d 288 (5th Cir.
1993) (affirming liability and compensatory damages of $30,000,
reversing punitive damages of $100,000, and affirming attorney’s
fees of over $20,000). As I thus believe that this panel is
departing from circuit and Supreme Court prece4dent by vacating the
attorney’s fees award without any showing of clear error in the
22
22
award by the appellant, but rather as a matter of law merely
because part of the award has been reversed or reduced on appeal,
I must respectfully dissent.
23
23