Shipes v. Trinity Industries

United States Court of Appeals,

Fifth Circuit.

Nos. 85-2767, 91-4961.

Forest Henry SHIPES, on behalf of himself and others similarly
situated, et al., Plaintiffs-Appellees,

v.

TRINITY INDUSTRIES, A Corporation, Defendant,

Robert E. Rader, Jr., Appellant.

Forest Henry SHIPES, et al., Plaintiffs-Appellees,

v.

TRINITY INDUSTRIES, Defendant-Appellant.*

April 5, 1993.

Appeals from the United States District Court for the Eastern
District of Texas.

Before WISDOM, JOLLY, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Forest Henry Shipes, a black male, was employed by Trinity

Industries. After he was laid off, Shipes filed suit against

Trinity under, inter alia, Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e et seq. Shipes alleged that Trinity's

all-white supervisory force had discriminated against him in

decisions concerning his job placement, promotions, and lay-off.

The district court certified a class that included all black hourly

employees at two of Trinity's plants. The trial was bifurcated,

and after the trial on liability Trinity was found to have

intentionally discriminated against black hourly employees in

*
On motion of plaintiffs-appellees and by order of this
court, Shipes's cross-appeal was severed on March 12, 1993.
initial hiring, promotions, terminations, and lay offs. The

district court then appointed an expert who determined damages to

individual class members. After an award of attorneys' fees to

Shipes in the amount of $308,238.05, judgment was entered. Trinity

appeals. Still further, Trinity's trial counsel appeals the

district court's imposition of personal sanctions against him

pursuant to Fed.R.Civ.P. 37(b) in the amount of $3,000.00.

I

Trinity Industries manufactures railcars and structural steel

products. Trinity operates over thirty production facilities in

thirteen states, including two plants in Longview, Texas. Shipes

was employed by Trinity at its plant in East Longview as a welder's

helper from October 23, 1979, until he was laid off on June 30,

1980.

On December 16, 1980, Shipes filed suit against Trinity under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq. Shipes alleged that Trinity's all-white supervisory force had

discriminated against him personally in decisions concerning his

job placement, promotions, and layoff. In addition, the district

court permitted Shipes to maintain a class action that included all

black hourly workers employed at both of Trinity's plants in

Longview, Texas, between January 10, 1980, to April 1, 1984.

The district court bifurcated the trial, and the liability

portion was tried in 1984.1 On October 10, 1985, the district

1
During the course of discovery, the district court imposed
personal sanctions against Trinity's trial counsel, Robert Rader,
Jr. Rader's appeal of these sanctions has been consolidated with
this appeal.
court determined that Trinity intentionally discriminated against

plaintiff class members in initial placement and pay and in layoffs

at both Longview plants; intentionally discriminated against

plaintiff class members in promotions and terminations at the plant

in East Longview; and had discriminated against Shipes

individually in initial placement and pay, promotions, and layoff.

The district court then, sua sponte, appointed an expert to

determine damages.

On December 6, 1991, the expert submitted a model for damages,

and on January 22, 1992, the district court entered partial final

judgment and ordered that each class member have and recover from

Trinity the amount determined by the court-appointed expert.

Trinity had urged the district court to order class-wide relief,

but instead the district court instructed the expert to determine

damages on an individual-by-individual basis. The district court

subsequently awarded Shipes $308,238.05 in attorneys' fees.

Trinity appeals, and Trinity's trial counsel appeals the imposition

of personal sanctions.

II

On appeal, Trinity challenges class certification, the

computation of the back pay award, and the determination of

attorneys' fees.2 Trinity first appeals the district court's

2
Trinity also argues on appeal that the district court erred
by not including voluntary resignations in its analysis of
discrimination in layoffs. Trinity itself originally excluded
from its layoff analysis those employees who had resigned. Its
analysis, however, showed that a statistically significant higher
number of black employees than whites had been laid off. Thus,
Trinity then revised its study and included those employees who
had resigned. Trinity, however, presented no evidence of actual
employee motivation in resigning. Furthermore, Shipes's analysis
certification of a class, arguing that Shipes should not have been

allowed to represent blacks employed at a different plant from the

plant at which he worked. Second, Trinity appeals the district

court's method of calculating the back pay remedy. Trinity argues

that the district court erred in determining back pay awards on an

individual-by-individual basis. Trinity contends that the district

court should have ordered class-wide monetary relief—that is, it

should have awarded each and every plaintiff class member his pro

rata share of a pre-determined total monetary award. Third,

Trinity appeals the district court's determination of attorneys'

fees, arguing that the district court double counted factors and

relied on erroneous considerations in enhancing the award.

On the other hand, Shipes first argues that the district court

did not err in class certification. Shipes also argues that the

district court did not err in formulating the back pay remedy.

Furthermore, Shipes argues that the district court correctly

calculated the lodestar amount of attorneys' fees and properly

enhanced this amount.

In a consolidated action, Trinity's trial counsel, Robert

Rader, Jr., contends that the district court abused its discretion

by imposing personal sanctions against him in the amount of

$3,000.00. Shipes argues that the sanctions were warranted because

of Rader's failure to comply with discovery requests.

still showed an unfavorable result to black employees even when
employees who had resigned were included in the statistical data.
The district court found Trinity's proposal to include employees
who had resigned in its analysis of discrimination in layoffs
unsupported and illogical; we find no reversible error in the
district court's decision.
 III

We first address Trinity's argument that the district court

should not have certified a class that included employees not only

at the plant where Shipes was employed, but also employees at an

additional plant. The district court's certification of a class is

reviewed under the abuse of discretion standard. Merrill v.

Southern Methodist Univ., 806 F.2d 600, 607 (5th Cir.1986).

Furthermore, the district court has wide discretion in deciding

whether to certify a proposed class. Jenkins v. Raymark Indus.,

Inc., 782 F.2d 468, 471-72 (5th Cir.1986).

Trinity argues that Shipes failed to satisfy the commonality

and typicality requirements of Fed.R.Civ.P. 23(a), and thus it was

an abuse of discretion for the district court to certify a class.3

The district court determined that the two plants Trinity operated

in Longview utilized the same subjective criteria in making

personnel decisions; white supervisors at both plants applied the

subjective criteria; employees were transferred between the two

plants; the two plants had the same insurance plan, retirement

programs, and administrative forms; and the two plants used the

same Hourly Employee Handbook. The threshold requirements of

commonality and typicality are not high; Rule 23(a) requires only

that resolution of the common questions affect all or a substantial

number of the class members. Jenkins, 782 F.2d at 472.

3
Rule 23(a) provides that one or more members of a class may
sue on behalf of all if (1) the class is so numerous that joinder
of all members is impracticable, (2) there are questions of law
or fact common to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses of
the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.
Allegations of similar discriminatory employment practices, such as

the use of entirely subjective personnel processes that operate to

discriminate, satisfy the commonality and typicality requirements

of Rule 23(a). Carpenter v. Stephens F. Austin State Univ., 706

F.2d 608, 617 (5th Cir.1983). The district court clearly did not

abuse its discretion in certifying the class.

IV

A

We next turn to Trinity's argument relating to damages. The

district court's calculation of a back pay award is reviewed under

the clearly erroneous standard. Pegues v. Mississippi State

Employment Serv., 899 F.2d 1449, 1455 (5th Cir.1990). At the

outset, we observe that fashioning a class-wide back pay award is

exceedingly complex and difficult, and the process is fraught with

uncertainty. Pettway v. American Cast Iron Pipe Co., 494 F.2d 211,

260 (5th Cir.1974). Two general premises apply to the computation

of a back pay award: (1) unrealistic exactitude is not required,

and (2) uncertainties in determining what an employee would have

earned but for the discrimination should be resolved against the

discriminating employer. Claiborne v. Illinois Cent. R.R., 583

F.2d 143, 149 (5th Cir.1978), cert. denied, 442 U.S. 934, 99 S.Ct.

2869, 61 L.Ed.2d 303 (1979). Furthermore, the district court must

be granted wide discretion in resolving ambiguities. United States

v. United States Steel Corp., 520 F.2d 1043, 1050 (5th Cir.1975),

cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976).

B

The district court ordered that back pay be determined on an
individualized basis. The district court ordered that only each

class member, whose beginning pay rate at the time he started

working for Trinity was below the average beginning rate for white

employees with the same qualifications, should receive a back pay

award; the award raised the hourly rate of such individual class

member by the difference between his beginning rate and the average

white beginning rate. Trinity argues that this back pay remedy

violates the fundamental rules of calculating such an award because

it unfairly excludes some class members and grants a windfall to

other class members. Trinity argues that the district court should

have determined a total sum that represented the difference between

black and white beginning rates as a whole, and then divided this

amount to all class members on a pro rata basis.4 Trinity argues

that such an increase to class members would tend to eliminate the

racial characteristics reflected in the distribution of pay rates;

in other words, black and white employees in representative numbers

would occupy the highest pay rates as well as the middle and lower

pay rates.

Trinity also argues—somewhat vaguely—that the district court's

4
Under Trinity's proposed method, every class member would
receive the same monetary award. In the calculation of the back
pay award for initial rate, for example, the average starting
rate for white employees as a group would be compared to that of
plaintiff class members. Simply illustrated, if five white
employees had beginning rates as a group of $5.00, $6.00, $7.00,
$8.00, and $9.00, the average would be $7.00. If five class
members had beginning rates of $3.00, $4.00, $5.00, $6.00, and
$7.00, the average would be $5.00. The total difference in rates
between the groups would be $2.00, (the difference in averages)
multiplied by 5, the number of class members, or $10.00. This
amount, $10.00, would then be distributed pro rata to the class
members, each class member receiving a back pay award of $2.00,
or $10.00 divided by 5. Trinity's method would thus shift the
entire group of plaintiff class members upward by that amount.
formula for determining back pay for premature separation from

employment was equally flawed. For premature separation from

employment, the district court ordered a comparison between the

actual length of service of each class member and the median length

of service of white employees hired in the same time period. Each

plaintiff class member whose service was less than the median

length of service for white employees received an award equal to

the difference.5 Again, Trinity argues that the appropriate remedy

is to calculate the total difference in the treatment of the

classes and then award each class member his pro rata share.

C

On the other hand, Shipes defends the district court's remedy.

Shipes argues that the district court's remedy was adopted in order

to bring the pay level of each black employee who was paid less

than the average salary of white employees with equal

qualifications up to the level of that average. Shipes argues that

the method proposed by Trinity is not intended to, and does not,

compensate individual black employees to the extent to which they

were underpaid relative to white employees with their

qualifications; instead, Trinity's method is concerned only with

equalizing the amounts paid to whites and blacks as a group.

Shipes argues that under Trinity's plan, each class member

would receive the same increment to his initial pay, regardless of

the amount by which he was actually underpaid or regardless of

5
For example, if the average length of employment for white
employees hired during a particular time period was two years,
but a black employee hired during this same time period was laid
off or terminated after one year, the black employee would be
entitled to back pay for one year.
whether he was underpaid at all. Shipes points out that some

blacks were hired at rates equal to comparable whites. Thus, there

is no basis to find that these black employees were discriminated

against. Consequently, Shipes argues that Trinity's proposed pro

rata award to all black employees would in effect deduct from the

wage rate awarded each black employee who was underpaid and, in

effect, grant that money as a windfall to non-discriminatees.

D

Let us begin our evaluation of these arguments by observing

that a Title VII class action suit imposes on the plaintiff a

bifurcated burden of proof. First, the plaintiff must establish

invidious class-based treatment; next, he must prove damages

caused to class members by that illegal conduct. A finding of

racial discrimination against a class "does not necessarily mean

that every member of the class is entitled to back pay." Johnson

v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 (5th Cir.1974).

Once a prima facie case of discrimination against a class is made,

a presumption of back pay arises in favor of all class members;

this presumption does not, however, per se entitle a class member

to back pay without some individual clarification. Pettway, 494

F.2d at 259. Once it has been determined that the class has been

subjected to unlawful racial discriminatory practices, only those

individuals who have suffered a loss of pay because of the illegal

discrimination are entitled to compensation. Johnson, 491 F.2d at

1376. Title VII does not require a remedy for those not

discriminated against. Gamble v. Birmingham So. R.R. Co., 514 F.2d

678, 686 (5th Cir.1975).
 The complexity of the case is a determining factor in what

method the district court should utilize to formulate a back pay

award. Pettway, 494 F.2d at 261. If the class is small, the time

period short, or if the effect of the discrimination is

straightforward, an individual-by-individual determination of what

each claimant's position would have been but for the discrimination

is possible. Id. If, however, the class is large, the promotion

or hiring practices are ambiguous, or the illegal practices

continued over an extended period of time, a class-wide approach to

the measure of back pay may be necessitated. Id. The process of

computation is not, however, an "either, or" approach, and the

determination of a back pay model is not a choice between one

approach more precise than another. Id. at 261 n. 151.

Methods for determining back pay possessed of superior

certainty, such as the approach adopted by the district court,

should be exhausted before resorting to racially drawn class-wide

comparisons or pro rata approaches. United States v. Steel Corp.,

520 F.2d at 1055. The fact that a class is large does not mean

that pro rata relief should automatically be ordered. As noted

earlier, not all members of a class are automatically entitled to

back pay and there should be, if possible, a determination on an

individual basis as to which class members are entitled to damages

and the amount of such recovery. Johnson, 491 F.2d at 1375.

E

To reverse the district court, we would have to conclude that

its calculations of back pay were clearly erroneous. On December

27, 1990, the district court entered an order that established the
guidelines that the court-appointed expert was to follow in

constructing the final model for back pay damages. With respect to

discrimination occurring in wage rates upon initial hiring, the

district court ordered that back pay be awarded to particular class

members based on the difference between the average starting wage

paid to white employees with the class member's qualifications and

the actual starting wage paid to such class member.

On July 29, 1991, the district court entered a second order

relating to damage calculations. In this order, the district court

addressed Trinity's concern that calculations for the class should

be determined as a total sum, and then damages awarded to each

class member on a pro rata basis. The district court stated that

Trinity's proposal rested on the assumption that a class-wide

finding of discrimination implies that each class member was

affected equally by the discrimination and therefore damages should

be determined by comparing the class of white employees with the

class of black employees. The district court, however, expressly

rejected this argument, stating that Trinity's proposed method of

awarding damages was inappropriate. Specifically, the district

court stated that although Trinity was found liable for

discrimination against the plaintiff class generally, it could not

be assumed that such discrimination was uniformly felt by all class

members.

The back pay model adopted by the district court has two

sections. First, for back pay remedying discrimination in initial

starting salary, each individual class member was compared to white

employees who had the same educational background and work
experience. If a class member was paid a starting rate below the

average starting rate of white employees with the same

qualifications, the class member was awarded that difference as

back pay. Second, for back pay in premature separation from

employment, each individual class member was compared to white

employees who were hired in the same time period. An average

length of employment for these white employees was determined. If

a class member was laid off or terminated before the average length

of employment for the group of comparable white employees, he was

awarded the difference as back pay.

Under the back pay formula relating to initial pay rates,

those individual class members who were paid starting rates above

the average starting rates of white employees with the same

qualifications received no back pay award. Similarly, those

individual class members who were not laid off or terminated prior

to the average length of employment for white employees hired in

the same time period received no back pay award. A Title VII

plaintiff, however, is not entitled to recover an amount greater

than his pecuniary loss. Pegues, 899 F.2d at 1457. Because these

class members did not suffer pecuniary losses as a result of

Trinity's discrimination, it follows that they are not entitled to

an award of back pay. After carefully reviewing the record and the

back pay remedy ordered by the district court, it is our opinion

that the remedy ordered was not clearly erroneous. The district

court's back pay remedy is therefore affirmed.

V

A
 We now address Trinity's argument concerning the attorneys'

fees awarded to Shipes. The district court's determination of

attorney's fees is reviewed for abuse of discretion, and the

findings of fact supporting the award are reviewed for clear error.

Von Clark v. Butler, 916 F.2d 255, 258 (5th Cir.1990). As the

first step in determining the amount of attorneys' fees to award,

the district court must determine the compensable hours from the

attorneys' time records, including only hours reasonably spent.

Alberti v. Klevenhagen, 896 F.2d 927, 930 (5th Cir.), vacated in

part, 903 F.2d 352 (5th Cir.1990). As a second step, the district

court must select an appropriate hourly rate based on prevailing

community standards for attorneys of similar experience in similar

cases. Id. The number of compensable hours is then multiplied by

the selected hourly rate to produce the "lodestar" amount.

Shipes sought recovery of attorneys' fees for 1,306.88 hours

of time at a rate of $175.00 per hour for lead counsel and $150.00

per hour for associate counsel. The district court, after

determining beyond doubt that the plaintiffs had indeed prevailed

on the central issue of the lawsuit and were thus prevailing

parties, ordered payment of 100% of the time requested at a rate of

$165.00 per hour for lead counsel and $140.00 per hour for

associate counsel, for a total fee award of $144,712.70. The

district court stated that only four of the Johnson v. Georgia

Highway Express, 488 F.2d 714 (5th Cir.1974), factors were subsumed

in the lodestar amount: (1) time and labor required; (2)

customary fee; (3) counsel's experience and ability; and (4)
awards in similar cases.6 After determining that the hours

accurately reflected the time expended in this action, the district

court further determined that the rates proffered by Trinity were

too low, but that Shipes's attorney had failed to show that

attorneys with abilities comparable with her actually received

$175.00 per hour. For this reason, the district court ordered

payment at the hourly rate of $165.00, which represented the amount

recently applied by the district court for work performed by lead

counsel in employment discrimination cases.

The district court did not err in its calculation of the

lodestar amount. The district court reviewed the attorneys' time

records and found them to be more than adequate. The district

court did not simply accept the hourly rate suggested by Shipes's

attorneys, but instead lowered it to an hourly rate that had been

applied in the community for similar cases. The district court

further ordered that the hourly rates for the attorneys be reduced

for the time the attorneys spent traveling. We find that the

district court did not err in its determination of the lodestar

amount of $144,712.70.

B

After determining the lodestar amount, the district court may

6
The twelve Johnson factors are (1) the time and labor
involved; (2) the novelty and difficulty of the questions; (3)
the skill requisite to perform the legal services properly; (4)
the preclusion of other employment by the attorney due to this
case; (5) the customary fee; (6) whether fee is fixed or
contingent; (7) time limitations; (8) the amount involved and
results obtained; (9) the experience, reputation, and ability of
counsel; (10) the undesirability of the case; (11) the nature
and length of the professional relationship with the client; and
(12) awards in similar cases. Johnson v. Georgia Highway
Express, 488 F.2d 714, 717-19 (5th Cir.1974).
adjust the lodestar up or down in accordance for relevant Johnson

factors not already included in the lodestar. After calculating

the lodestar amount, the district court must then apply the

remaining Johnson factors to determine if the lodestar should be

adjusted; the district court must be careful, however, not to

double count a Johnson factor already considered in calculating the

lodestar when it determines the necessary adjustments. Von Clark,

916 F.2d at 258. Furthermore, the district court must explain with

a reasonable degree of specificity the findings and reasons upon

which the award is based, including an indication of how each of

the Johnson factors was applied. Id. Four of the Johnson

factors—the novelty and complexity of the issues, the special skill

and experience of counsel, the quality of representation, and the

results obtained from the litigation—are presumably fully reflected

in the lodestar amount. Alberti, 896 F.2d at 930. Although upward

adjustments of the lodestar figure based on these factors are still

permissible, such modifications are proper only in certain rare and

exceptional cases supported by both specific evidence on the record

and detailed findings by the lower courts. Id.

After calculating the lodestar amount, the district court

enhanced the fee on five additional Johnson factors. First, the

district court determined that the lodestar amount should be

enhanced for the novelty and difficulty of the case, stating that

this action involved representation of over three hundred employees

at two manufacturing plants, challenged the entire spectrum of

Trinity's employment decisions, and involved complex, highly

technical data. Second, the district court enhanced the lodestar
amount based on the skill required, stating that Shipes's claim

necessitated extensive analysis, which Shipes's counsel competently

presented. Third, the district court enhanced the lodestar amount

for the preclusion of other employment, stating that Shipes's

counsel's total time commitment to this case for several months

adequately demonstrated that this case was inordinately

time-consuming and precluded the acceptance of other requests for

representation. Fourth, the district court enhanced the lodestar

amount based on special time limits imposed, stating that Shipes's

counsel's claim of nearly total time commitment before trial

supported an upward fee adjustment because of the exceptional skill

needed to present the last-minute data in an intelligible manner.

Fifth, the district court enhanced the lodestar amount based on the

amount of money involved and the obtained, stating that the outcome

of this lawsuit represented a tremendous victory based upon the

large number of claimants and the probable enormity of the relief.7

On December 7, 1987, the district court ordered an 80% enhancement

of the lodestar award based on these five Johnson factors,

increasing the attorneys' fee award from $144,112.70 to

$260,482.86. 685 F.Supp. 607.

C

We find that four of these five Johnson factors used by the

district court to enhance the lodestar amount—the novelty and

difficulty of the case, the skill required, special time limits

7
The district court further determined that enhancement
should not be granted for two remaining Johnson factors: the
undesirability of the case and the nature and length of
professional relationship with the client.
imposed, and preclusion of other employment—are unsupported, and

thus enhancement based on these factors was unwarranted. We do

think, however, that enhancement due to the results obtained may be

warranted.

The district court enhanced the lodestar amount based on the

novelty and difficulty of the case because it found that there were

over three hundred plaintiffs, an entire spectrum of employment

decisions was being challenged, the case was complex and highly

technical, and Trinity's obstinate conduct caused additional

difficulty. These factors—not uncommon in much present-day

litigation—simply do not render a case "rare" or "exceptional" for

purposes of enhancing the lodestar amount. All counsel competent

to handle a case such as this one are expected to be able to deal

with complex and technical matters; this expertise is reflected in

their regular hourly rate, based on fees for counsel of similar

experience and ability. Still further, the difficulty in the

handling of the case is adequately reflected in the number of hours

billed—hours for which the attorney is compensated in the lodestar

amount. Similarly, obstinate conduct by opposite counsel is

compensated by the additional number of hours that are required to

prevail over such obstinacy.

The district court's enhancement based on two other

factors—the skill required and special time limits imposed—was, we

think, also unwarranted as each is accounted for in the lodestar

amount. Even though Shipes's counsel presented extensive

statistical data with competence, nothing less should be expected

of counsel; consequently, this factor alone does not support
enhancement. We also find as an unwarranted basis for enhancement

"special time limits imposed" by the defendant's necessitating that

Shipes's attorney evaluate last-minute data shortly before trial.

Again, we emphasize that this factor is not an abnormal

occurrence—especially in a trial involving statistics and complex

data—and is accounted for by the additionally required hours that

are reflected in the lodestar.

We also conclude that the district court improperly enhanced

the lodestar based on the preclusion of other employment. The

district court found that Shipes's counsel was totally committed to

this case for several months prior to trial and concluded that this

demonstrated that counsel was precluded from accepting other

requests for representation. The district court did not make a

finding that Shipes's attorney had indeed been required to refuse

other employment because of this case, and enhancement based on

this factor is therefore unsupported. Furthermore, this factor

will ordinarily be subsumed within the lodestar amount: If, for

example, Shipes's attorney worked on nothing but this case, then

this potential loss of income in refusing other employment is

compensated for in the number of hours she billed in the instant

case.8

We do think, however, that the district court may have been

warranted in enhancing the lodestar amount because of the amount

8
We also note that the complaint in this case was filed on
December 16, 1980, the trial began on November 19, 1984, and
partial final judgment on liability was entered on October 10,
1985; for this extended period of time, however, Shipes's
attorneys sought fees for only 1,306.88 hours. Certainly during
this time period Shipes's attorneys were not precluded from
accepting other employment because of this case.
involved and results obtained.9 Shipes's victory was complete on

all issues. Furthermore, the victory resulted in a substantial

award of monetary damages for class members—plus, and very

importantly, future protection against discrimination in the form

of injunctive relief. For these reasons, enhancement of the

lodestar amount on account of the results obtained may have been

warranted. On remand, the district court must determine whether it

is customary in the area for attorneys to charge an additional fee

above their hourly rates for an exceptional result after lengthy

and protracted litigation. If Shipes's attorneys can demonstrate

this area custom, the district court will be warranted in enhancing

the lodestar in an appropriate amount based on this factor.

D

On August 4, 1988, the district court ordered an additional

33% enhancement of the lodestar amount based on the risk of not

prevailing, or the contingent nature of the case. The district

court found that the clear improbability of plaintiffs' ability to

find counsel to represent them in similar actions within the

district warranted the contingency enhancement.

In Islamic Center of Mississippi v. Starkville, 876 F.2d 465

(5th Cir.1989), this court adopted the approach to enhancement for

the contingent nature of the case set forth in Justice O'Connor's

concurrence in Pennsylvania v. Delaware Valley Citizens' Council

9
As we stated earlier, this factor is presumably reflected
in the lodestar amount and enhancement based on results obtained
is proper only in rare and exceptional cases supported by
specific evidence and detailed findings by the district court.
See Alberti, 896 F.2d at 930. On remand the district court
should take cognizance of this requirement in deciding whether to
enhance the lodestar amount based upon the results obtained.
(Delaware Valley II), 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585

(1987). In City of Burlington v. Dague, --- U.S. ----, 112 S.Ct.

2638, 120 L.Ed.2d 449 (1992), however, the Supreme Court rejected

Justice O'Connor's approach. In Burlington, the Court first noted

that, "[a]lthough different fee-shifting statutes are involved, the

question is essentially identical" to the question it had

addressed, but which it had not resolved in Delaware Valley II:

whether a court may enhance the fee award above the lodestar amount

in order to reflect the fact that the party's attorneys were

retained on a contingent-fee basis and thus assumed the risk of

receiving no payment at all. In Burlington, the Court was urged to

adopt the approach set forth by Justice O'Connor in Delaware Valley

II. The Court expressly declined to do so, however, stating that

"we do not see how it can intelligibly be applied." Burlington, --

- U.S. at ----, 112 S.Ct. at 2642. The Court instead adopted the

approach reflected in Justice White's plurality opinion in Delaware

Valley II and held that enhancement for contingency was not

permitted under the fee-shifting provisions of the Solid Waste

Disposal Act and the Clean Water Act. Burlington, --- U.S. at ----

- ----, 112 S.Ct. at 2643-44.

Thus, Burlington eviscerates our holding in Islamic Center in

which we stated that Justice O'Connor's position was "the only view

to which a majority of the [Supreme] Court, and perhaps even the

whole [Supreme] Court could subscribe." Islamic Center, 876 F.2d

at 471. Burlington now tells us, however, how wrong we were.

Accepting the error of previous thinking, and following the clearly

lighted path of Burlington, we now hold that the contingent nature
of the case cannot serve as a basis for enhancement of attorneys'

fees awarded to prevailing plaintiffs under traditional

fee-shifting provisions. Accordingly, it was error for the

district court to enhance the lodestar amount by 33% based on this

factor.

E

In summary, we conclude that the district court correctly

calculated the lodestar amount to be $144,112.70. We also conclude

that one of the enhancement factors applied by the district

court—the results obtained—may have been warranted; we therefore

remand this issue to the district court for a determination of

whether this factor is supported by custom in the legal community

and, if so, the appropriate amount.

VI.

We now turn to the issue of sanctions which were accessed

against Trinity's trial counsel, Robert Rader, Jr., pursuant to

Rule 37(b), the appeal of which has been consolidated with this

action. The imposition of sanctions is a matter of discretion for

the district court; we review only for abuse. Frame v. S-H, Inc.,

967 F.2d 194, 202 (5th Cir.1992). We hold that the district court

did not abuse its discretion in sanctioning Rader.

In its order of March 5, 1984, the district court noted that

Trinity had been recalcitrant in relation to the discovery sought

by Shipes. As early as November 24, 1981, the district court

observed that Trinity's entire posture was infected with a tone of

indifference and disrespect for clearly established rules of

procedure. The district court warned that such lassitude would not
be countenanced. On February 12, 1982, the district court stated

that the recurring nature of Trinity's indifference to time limits

substantially limited the credibility of Trinity's protestations of

good faith. The district court further stated that Trinity's

objection to and failure to answer two interrogatories directly

violated an earlier court order; the district court cautioned that

Trinity's failure to answer was tantamount to contempt of court.

In 1982, the district court also noted that Trinity continued to

adhere to its posture of disobedience to court orders and again

warned that this attitude would not be countenanced further. At

this point, the district court cautioned Rader that Rule 37(b)

prescribed harsh actions against parties who failed to comply with

orders concerning discovery.

Notwithstanding these warnings, still Shipes had to file

numerous other motions to compel, which the district court granted.

The district court held a hearing on March 16, 1984, to allow Rader

to appear to show cause why he should not be sanctioned. After the

hearing, the district court concluded that there had been a

deliberate effort by Rader to delay discovery. The district court

did not, however, impose any sanctions at that time, but stated

that it did not expect to be presented with any additional problems

concerning discovery. After the hearing, Shipes was given the

information to which Rader had referred. Then, however, on March

20, 1984, Shipes filed yet another motion for sanctions. At this

time, the district court awarded sanctions. The court found that

the information given to Shipes by Rader after the earlier hearing

did not represent most of the outstanding discovery and that Rader
had been disingenuous in his representations to the court that he

had complied with the court's orders.

The district court did not abuse its discretion in

sanctioning Rader. On the contrary, the district court gave Rader

several warnings and on numerous occasions cautioned Rader to

comply with discovery requests. The court did not err in

concluding that Rader had failed to heed its warnings and had

failed to comply in good faith. Neither did the court err as to

the amount of $3,000.00. Under Rule 37(b), Rader may be personally

liable for reasonable expenses, including attorneys' fees, caused

by his failure to comply with a discovery order. Batson v. Neal

Spelce Assoc., Inc., 765 F.2d 511, 516 (5th Cir.1985). The

affidavit presented by Shipes's attorney along with the January 23,

1984 motion for sanctions showed attorneys' fees and expenses in

the amount of $1,617.50. On March 16, 1984, Shipes's attorneys had

to attend a hearing for Rader to show why he should not be

sanctioned, and on March 20, 1984, Shipes's attorneys had to

prepare yet another motion for sanctions. It was reasonable for

the district court to assume that the expenses and fees involved in

the second motion were similar to those incurred in preparing the

first motion. We therefore affirm the district court in

sanctioning Rader in the amount of $3,000.00.

VII.

For the reasons stated above, we affirm the district court's

certification of a class. Furthermore, we affirm the district

court on the issue of damages. We reverse, vacate, and remand,

however, on the issue of attorneys' fees; the district court
correctly determined the lodestar amount, but enhancement should

not have been ordered except possibly on one Johnson factor—the

results obtained—with respect to which we remand. In addition, we

affirm the district court's sanctioning of Trinity's trial counsel.

Accordingly, the decision of the district court is

AFFIRMED in part; REVERSED, VACATED, and REMANDED in part.