IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-11406
_____________________
MELISSA MIGIS,
Plaintiff-Appellee,
Cross-Appellant,
versus
PEARLE VISION, INC.,
Defendant-Appellant,
Cross-Appellee.
_______________________________________________________
Appeals from the United States District Court for
the Northern District of Texas
_______________________________________________________
March 10, 1998
Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
REAVLEY, Circuit Judge:
The court below entered a judgment in favor of Melissa Migis
on her claim of pregnancy discrimination under Title VII, 42
U.S.C. §§ 2000e et seq. Defendant Pearle Vision, Inc. appeals on
various grounds, and Migis cross appeals on an item of costs. We
reverse the award of attorney’s fees, and remand for further
proceedings. Otherwise we affirm.
A. Liability for Pregnancy Discrimination
Pearle Vision argues that the trial court erred in denying
its motion for judgment and finding that Pearle Vision had
discriminated against Migis on the basis of her pregnancy.1
Title VII prohibits employer discrimination against an individual
because of such individual’s sex. 42 U.S.C. § 2000e-2(a)(1).
The term “because of sex” includes “because of . . . pregnancy,
childbirth, or related medical conditions.” Id. § 2000e(k).
While Pearle Vision presented a substantial case that
Migis’s termination was not based on her pregnancy, but instead
was part of an ongoing, large-scale reduction in force, we cannot
say that the district court’s finding of discrimination was
clearly erroneous. The evidence in support of that finding
includes the following.
Migis was a programmer/analyst in the corporate systems
group of Pearle Vision’s information services department. For
1
By agreement the case was tried to a United States
magistrate judge under 28 U.S.C. § 636(c). Upon the entry of
judgment by the magistrate, the parties were entitled to appeal
the judgment to this court “in the same manner as an appeal from
any other judgment of a district court.” Id. § 636(c)(3). The
district court’s findings in this Title VII case are subject to
the clearly erroneous standard of review. EEOC v. Clear Lake
Dodge, 60 F.3d 1146, 1151 (5th Cir. 1995). “A finding is
‘clearly erroneous’ when although there is evidence to support
it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948). “Where the court’s finding is based on its decision to
credit the testimony of one witness over that of another, ‘that
finding, if not internally inconsistent, can virtually never be
clear error.’” Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir.
1993) (quoting Anderson v. Bessemer City, 470 U.S. 564, 575
(1985)).
2
three years she received positive employee evaluations,
indicating that her work was fully satisfactory though not
exceptional. Migis learned that she was pregnant in January of
1994. She told her immediate supervisor, Mark McQuay, but asked
that McQuay keep the knowledge of her pregnancy to himself.
Migis was concerned “because of all the women that were being let
go and all the discrimination which was taking place at the
time.” She also wanted to wait until Mike Maher, a vice
president, was transferred back to the United Kingdom in March,
because she considered Maher a sexist. Management became aware
of Migis’s pregnancy in March or April.
Due to pregnancy complications related to her diabetes and
on the advice of her physician, Migis began working half days,
and on April 6 went on temporary disability. She intended to
return to work, and so informed McQuay.
McQuay reported to Glenn Graves, the director of information
services, who in turn reported to Colin Heggie, a senior vice
president. In February management began discussions of a staff
reduction in the corporate services group. McQuay testified that
management decided to terminate Randy Ragsdale, a senior
programmer/analyst, and Tracy Culpepper, a programmer/analyst.
Confidential memoranda from Graves to Heggie also reflect this
decision. McQuay testified that he had recommended that Migis be
retained because of her performance, and that there was no reason
she could not be promoted to senior programmer/analyst.
3
Kelly Keahon, the head of the human resources department,
advised Graves to clearly state and document for Heggie the
anticipated personnel actions. While Graves testified that
management had decided to eliminate three positions in the
corporate systems group, his memos reflect that only two
positions, held by Ragsdale and Culpepper, were to be eliminated.
In addition, an organizational chart has handwritten notes by
Graves indicating that staffing in the corporate systems group
was to be reduced by one senior programmer/analyst and one
programmer/analyst. Graves did not tell McQuay that Migis, in
addition to Ragsdale and Culpepper, was slated for termination.
McQuay testified that Graves drew a distinction between
maternity leave and disability leave, and was of the view that
Migis had taken the latter. McQuay stated that Graves was
“excited” that Migis was on disability leave because he thought
Pearle Vision had greater latitude to eliminate the job if the
latter type of leave was taken. Graves denied making such a
statement, but the magistrate judge found McQuay’s testimony more
credible on this point.
Migis gave birth in September, and on October 4 Migis met
with Graves regarding her return to work. She was told that her
position had been eliminated. The magistrate judge found that a
senior programmer position in the corporate systems group was
retained, and that a new position for a senior programmer in that
group was created. The court credited McQuay’s testimony that
Migis was qualified for a senior programmer position.
4
Graves told Migis that there was an opening for a programmer
in the product support group of the information services
department. This position went to Susan Marshall, who was not
pregnant and had worked for Pearle Vision as a contract employee
since September. Graves testified that members of the product
support group were opposed to bringing Migis into their group
because of her work ethic and judgment. He stated that he and
the head of the product support group did not “attempt to
determine [Migis’s] qualifications in relationship to the
qualifications or in comparison to the qualifications of Susan
Marshall.”
Given this and other evidence, the magistrate judge
concluded that Pearle Vision’s proffered reasons for eliminating
Migis’s job were pretextual, and that Pearle Vision had
discriminated against Migis on the basis of her pregnancy when it
terminated her. While Pearle Vision offered evidence to the
contrary, including plausible explanations for the documents
discussed above, we are not persuaded that the district court
clearly erred in finding a Title VII violation.
B. Back Pay Damages
Pearle Vision challenges the back pay awarded to Migis.
Migis was formally notified of her termination on November 7,
1994, when she received a separation agreement which she refused
to sign. Her compensation from Pearle Vision ceased on November
25. She received an offer of employment from another company on
December 19, but did not begin employment there until January 23,
5
1995. The court awarded back pay for the period between November
25 and January 23.
Pearle Vision argues that the back pay should only cover the
period from November 25 to December 19, the date of Migis’s new
job offer. A Title VII plaintiff has a duty to mitigate her
damages by using reasonable diligence to obtain substantially
equivalent employment. Sellers v. Delgado College, 902 F.2d
1189, 1193 (5th Cir. 1990). Whether the plaintiff has engaged in
such an effort is a question of fact subject to review for clear
error, and the burden is on the employer to prove failure to
mitigate. Id.
Migis testified that her new employer told her she could
start two weeks after the December 19 offer. However, she
explained that she canceled her day care after she lost her job
at Pearle Vision. She described finding new day care as “a very
strenuous process” and stated that she went to work immediately
once she arranged for the care of her daughter. The district
court did not clearly err in finding that Migis could not secure
suitable child care until January 23, and had accordingly used
reasonable diligence in mitigating her damages.
C. Compensatory Damages
Pearle Vision also challenges the district court’s award of
$5000 in compensatory damages. Where, as here, the employer has
more than 500 employees, Title VII claimants may recover
compensatory damages of up to $300,000. 42 U.S.C. §§ 1981a(a)(1)
& (b)(3)(D). The statute describes such compensatory damages as
6
including damages for “emotional pain, suffering, inconvenience,
mental anguish, loss of enjoyment of life, and other nonpecuniary
losses.” Id. § 1981a(b)(3).
Our review of mental anguish damages is for abuse of
discretion. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927,
940 (5th Cir. 1996), cert. denied, 117 S. Ct. 767 (1997). In
Patterson, we reversed awards of mental anguish damages granted
to two plaintiffs suing under Title VII and 42 U.S.C. § 1981. We
held that awards under the two statutes are governed by the same
rules, and that mental anguish damages cannot be recovered absent
“some specific discernable injury to the claimant’s emotional
state.” Id. In Patterson, one of the plaintiffs, Patterson,
testified that her firing “emotionally scarred her and resulted
in unemployment for almost one year.” Id. Noting the lack of
medical evidence or corroborating testimony, we held that
Patterson had not offered sufficient competent evidence to
support the award of mental anguish damages, since “[n]o evidence
suggests that Patterson was humiliated or subjected to any kind
of hostile work environment.” Id. at 941. The second plaintiff,
Brown, suing for racial discrimination, testified that the work
environment was “unbearable” and was “tearing my self-esteem
down,” that he was subjected to racial epithets, and that he felt
“frustrated” and “real bad” at being judged for the color of his
skin. Id. at 939. Noting the lack or corroborating testimony or
medical evidence, we found the evidence insufficient to sustain
an award for emotional damages, since “[n]o evidence suggests
7
that Brown suffered from sleeplessness, anxiety or depression.”
Id. at 939. The court further noted that immediately after his
constructive discharge Brown obtained new employment at a higher
wage. Id. at 939-40.
Patterson did not hold that medical evidence or
corroborating testimony is always required for an award of mental
anguish damages. Instead we stated that some other circuits
“have recognized that a claimant’s testimony alone may not be
sufficient to support anything more than a nominal damage award,”
and that Carey v. Piphus, 435 U.S. 247 (1978), “requires a degree
of specificity which may include corroborating testimony or
medical or psychological evidence in support of the [mental
anguish] damage award.” Id. at 938, 940 (emphasis added).
Patterson also quoted at length an EEOC policy statement
which recognizes that emotional harm may manifest itself “as
sleeplessness, anxiety, stress, depression, marital strain,
humiliation, emotional distress, loss of self esteem, excessive
fatigue, or a nervous breakdown.” Id. at 939 (quoting EEOC POLICY
GUIDANCE NO. 915.002 § II(A)(2), at 10-12 (July 14, 1992)).
In Farpella-Crosby v. Horizon Health Care Corp., 97 F.3d 803
(5th Cir. 1996), the plaintiff prevailed on a Title VII hostile
work environment claim. We upheld an award of compensatory
damages. The plaintiff testified that she felt “very
embarrassed, very belittled,” “very disgusted,” “hopeless,”
“about two inches high,” and “started to feel pretty stupid,” as
a result of a superior’s harassment. Id. at 809. She stated
8
that the work environment was “very stressful” and that she was
“embarrassed every time [she] went in there.” A friend testified
that she and plaintiff began to go everywhere together, believing
that there was “safety in numbers.” Id. Discussing and
distinguishing Patterson, we held this evidence sufficient to
support an award of compensatory damages, since the jury could
conclude that plaintiff “suffered emotional harm that manifested
itself as humiliation and stress.” Id.
The evidence of mental anguish testimony in the pending case
consisted solely of Migis’s testimony. She testified that her
termination, which came without warning, was “a major
inconvenience,” and that she suffered low self-esteem “not only
from not having worked but from getting terminated and not
offered a position that I thought I was qualified for . . . .”
With her new baby she suffered financial hardships. She stated
that she suffered “almost what I would call stress attacks or
anxiety attacks,” marital hardship, and “major stress,” as well
as “lot[s] of crying, sleeplessness.”
“Judgments regarding noneconomic damages are notoriously
variable.” Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir.
1996), cert. denied, 118 S. Ct. 64 (1997). We conclude that the
award of compensatory damages was within the court’s discretion.
As explained above, Patterson recognizes that mental anguish
damages may be appropriate where the plaintiff suffers
sleeplessness, anxiety, stress, marital problems, and
humiliation, and does not always require that the plaintiff offer
9
medical evidence or corroborating testimony in addition to her
own testimony. Farpella-Crosby, too, accepts that stress and
humiliation can support an award of mental anguish damages.
Migis’s testimony of anxiety, sleeplessness, stress, marital
hardship and loss of self-esteem was sufficiently detailed to
preclude us from holding that the district court abused its
discretion in its award of compensatory damages.
D. Attorney’s Fees
Pearle Vision challenges the district court’s award of
approximately $81,000 in attorney’s fees to Migis. Migis had
requested approximately $110,000 in fees. Under Title VII the
court “may allow the prevailing party . . . a reasonable
attorney’s fee . . . .” 42 U.S.C. § 2000e-5(k).
The calculation of attorney’s fees involves a well-
established process. First, the court calculates a “lodestar”
fee by multiplying the reasonable number of hours expended on the
case by the reasonable hourly rates for the participating
lawyers. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319,
324 (5th Cir. 1995). The court then considers whether the
lodestar figure should be adjusted upward or downward depending
on the circumstances of the case. Id. In making a lodestar
adjustment the court should look to twelve factors, known as the
Johnson factors, after Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974). The factors are: (1) the time and
labor required for the litigation; (2) the novelty and difficulty
of the questions presented; (3) the skill required to perform the
10
legal services properly; (4) the preclusion of other employment
by the attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the
amount involved and the result obtained; (9) the experience,
reputation and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in
similar cases. Id. at 717-719.
We review the district court’s initial determination of
reasonable hours and reasonable rates for clear error, and its
application of the Johnson factors for abuse of discretion.
Louisiana Power & Light, 50 F.3d at 324, 329. Some of these
factors are subsumed in the initial lodestar calculation and
should not be double counted. Shipes v. Trinity Indus. Corp.,
987 F.2d 311, 320 (5th Cir. 1993).
We have explained that, of the Johnson factors, the court
should give special heed to the time and labor involved, the
customary fee, the amount involved and the result obtained, and
the experience, reputation and ability of counsel. Von Clark v.
Butler, 916 F.2d 255, 258 (5th Cir. 1990). The Supreme Court has
twice made clear that “the most critical factor” in determining
the reasonableness of a fee award in a civil rights suit “is the
degree of success obtained.” Farrar v. Hobby, 506 U.S. 103, 114
(1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)).
11
The magistrate judge recognized the above procedure, and
entered a careful and thorough order analyzing Migis’s fee
request and Pearle Vision’s objections.2 The court noted that
the suit was hotly contested and that Pearle Vision amassed over
$200,000 in attorney’s fees.3 The court reduced the lodestar
amount it calculated by ten percent based on the results
obtained.4 Nevertheless, we conclude that the court did not give
adequate consideration to the eighth Johnson factor, the amount
involved and the result obtained.
By any fair measure, Migis’s success relative to the relief
she sought was limited. She proceeded to trial on the dual
claims that Pearle Vision discriminated against her in
terminating her position and in failing to hire her for the
opening in the product support group. The district court only
found discrimination as to the termination. Further, her
complaint alleged four acts of discrimination against Migis “on
account of her sex and/or pregnancy,” including her discharge,
Pearle Vision’s failure to allow her to return to work,
discrimination in the terms, conditions, and privileges of her
employment, and retaliation. Migis prevailed only on the first
theory, and only on the basis of pregnancy discrimination. As
indicated in interrogatory answers, she sought recovery of back
2
Migis v. Pearle Vision, Inc., 944 F. Supp. 508 (N.D. Tex.
1996).
3
Id. at 514.
4
Id. at 516.
12
pay and benefits of $25,000, and punitive and compensatory
damages of $300,000.5 At trial she asked for $50,000 in
compensatory damages. The court awarded her only $7,233.32 in
back pay, $5000 in compensatory damages, and no punitive
damages.6
Migis argues that in addition to the award of damages,
“[s]he received, importantly, a finding and declaration by the
court that she had been discriminated against on the basis of
pregnancy.” The judgment indeed declares that Pearle Vision
discriminated against her. However, the Supreme Court has held
that such a declaration does not alter the rule that the
plaintiff’s monetary success in a private civil rights suit must
be the primary determinant of the attorney’s fee. “Where
recovery of private damages is the purpose of . . . civil rights
litigation, a district court, in fixing fees, is obligated to
give primary consideration to the amount of damages awarded as
compared to the amount sought.” Farrar, 506 U.S. at 114 (quoting
City of Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell,
J., concurring)). Migis also argues that this is not a case
where the plaintiff’s suit can be segregated into discrete
5
Although Migis sought $300,000 in compensatory damages
and $300,000 in punitive damages, she correctly points out that
by statute the sum of these two cannot exceed $300,000. 42 U.S.C.
§ 1981a(b)(3)(D).
6
The court also awarded prejudgment interest of $1058.17
and post-judgment interest at a specified rate, but we see no
relevance to these awards. The award of interest is automatic
and bears no relation to the effort or skill of the attorneys or
any other Johnson factor. It merely adjusts the damage award to
reflect the time value of money.
13
claims, because all of her contentions involved a common core of
facts, and because she only prosecuted a single, discrete claim
of pregnancy discrimination. Even if Migis’s characterization is
correct, where “a plaintiff has achieved only partial or limited
success, the product of hours reasonably expended on the
litigation as a whole times a reasonable hourly rate may be an
excessive amount. This will be true even where the plaintiff’s
claims were interrelated, nonfrivolous, and raised in good
faith.” Hensley, 461 U.S. at 436.
The attorney’s fee award was over six and one-half times the
amount of damages awarded. Migis sought over twenty-six times
the damages actually awarded. Regardless of the effort and
ability of her lawyers, we conclude that these ratios are simply
too large to allow the fee award to stand. We hold that the
district court abused its discretion by failing to give adequate
consideration to the result obtained relative to the fee award,
and the result obtained relative to the result sought. We
therefore reverse the award of attorney’s fees and remand the
case for a new determination of fees consistent with this
opinion.
E. Costs
Pearle Vision and Migis complain of the district court’s
award of costs. Migis requested costs of $6400.64. The district
court awarded costs of $4297.32. It disallowed the witness and
process fees for certain witnesses, the cost of plaintiff’s
14
videotaped deposition, and costs associated with computerized
legal research, couriers, postage and copying.
The district court has broad discretion in taxing costs, and
we will reverse only upon a clear showing of abuse of discretion.
Alberti v. Klevenhagen, 46 F.3d 1347, 1358 (5th Cir. 1995). The
trial court “has wide discretion with regard to the costs in a
case and may order each party to bear his own costs.” Hall v.
State Farm Fire & Cas. Co., 937 F.2d 210, 216 (5th Cir. 1991).
Pearle Vision argues that the district court should have
disallowed Migis’s costs associated with pursuing her
unsuccessful claim that Pearle Vision discriminated against her
in failing to offer her a new position. The district court
disallowed a substantial portion of the costs Migis requested.
Even assuming that it is feasible to segregate costs by the two
claims Migis prosecuted, Pearle Vision’s refusal to rehire her in
a new position was arguably of evidentiary value to the claim on
which she did prevail--discrimination in her termination--even if
the refusal to rehire her was not itself found to be a separate
Title VII violation. We cannot say that the court abused its
discretion in awarding the costs that it did.
Migis complains that the court erred in denying her the cost
of her videotaped deposition. The deposition was transcribed by
a court reporter and videotaped. Pearle Vision provided Migis a
copy of the transcript. Migis requested and paid for a copy of
the videotape. As to deposition fees, 28 U.S.C. § 1920(2) only
allows for the recovery of “[f]ees of the court reporter for all
15
or any part of the stenographic transcript necessarily obtained
for use in the case.” There is no provision for videotapes of
depositions. Even if the statute can be interpreted to include
such copies, Migis does not show that the videotape of her own
deposition, in addition to the transcript, was “necessarily
obtained for use in the case.” We see no abuse of discretion in
denying this cost.
For the foregoing reasons, the district court’s award of
attorney’s fees is reversed, and the case is remanded for a
redetermination of attorney’s fees. In all other respects the
judgment is affirmed.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
MIGIS V. PEARLE VISION, INC., NO. 96-11406
RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and
dissenting in part:
Let us consider the reason of the case. For
nothing is law that is not reason.
Sir John Powell, Lord Raymond’s Reports (1765) vol. 2, p. 911.
In truth, the issues in this case are quite unextraordinary;
the majority has disposed of them most efficiently. On the
surface, for a case of this type, this is as it should be. This
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is especially true for the attorney’s fee question, which, as is
well-established, should not result in a second litigation and
take more time and effort (and paper) than the litigation on the
merits. So, on the surface, all is well.
But, lurking beneath this placid surface is an ever-
expanding, ever-growing, ever-devouring two-headed monster:
over-reaching Title VII litigation and concomitant fee awards.
Here, out of a plethora of claims, Migis succeeded on only one,
recovering little more than the rejected pre-trial settlement
offer. And, to add insult to injury, her award is dwarfed by the
fee awarded her attorney. As the majority notes, “Migis sought
over twenty-six times the damages actually awarded” and her
“attorney’s fee award was over six and one-half times the amount
of damages awarded”. Maj. Op. at 14. Obviously, something is
amiss. Reason, and reasonableness, have been lost in the
shuffle.
In sum, a person terminated in violation of Title VII, but
who found other work almost immediately at a higher compensation,
received only approximately $7,200 in back pay and benefits and
only $5,000 in compensatory damages (and, in fact, those
emotional distress damages should not have been awarded), but
rejected a $10,000 settlement offer along the way. To top it
off, under the Title VII fee-shifting provisions, her lawyer was
awarded $81,000! A fee of $81,000, when damages total only
approximately $12,000 and when a settlement offer of $10,000 is
rejected four months before trial is more than sufficient cause
for taking a close, close look not only at this case, but also at
the system and procedures behind it. Where is reason? Where is
reasonableness?
Certainly, every case is different. Certainly, Title VII
fee-shifting serves a purpose. And, certainly, different factors
prompt different damages and fee awards. For the latter, the
lodestar, with its adjustment procedure, if applied properly,
should ensure an acceptable result — a fee that, as required by
Title VII, is “reasonable”. But, I fear that this procedure is
being applied in keeping with the times, with the idea that
nothing deserves something, and, especially in that regard, that
lawyers must be handsomely rewarded, notwithstanding that their
labors bore little, if any, fruit. This concern is particularly
true when rejection of a pre-trial settlement offer almost equal
to the total damages is added to the mix. Reason and
reasonableness are missing in action.
Excess has become an art form. This case, being a splendid
— better yet, sad — example, presents issues that demand far more
relief and adjustment than my able panel colleagues are willing
to accord. Therefore, I must respectfully dissent and hope that
this alarm, sounded at considerable, but necessary, length, will
reach some ears and, perhaps, help restore reason to the damages
and fees awarded in cases of this type. Reason can be restored.
Reasonableness can be achieved.
On the issues, I concur as to liability, back pay, and
denial of the cost of a copy of Migis’ deposition videotape.
But, because the evidence and our precedent do not support an
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award of more than nominal compensatory damages for emotional
distress, I dissent from affirming the $5,000 compensatory
damages award. And, although I concur in reversing the
attorney’s fee award and remanding for further proceedings, I
cannot agree either with the refusal to require reduction of the
lodestar for time spent on unsuccessful claims and in pursuit of
irrelevant evidence, or with awarding costs connected with that
pursuit.
To assist with focusing on my disagreement and concerns, a
restatement of the factual and procedural history is required.
I.
Pearle employed Migis in January 1991 as a
Programmer/Analyst in the Corporate Systems Group, part of the
Information Services Department, at Pearle’s headquarters in
Dallas, Texas. In early 1994, Migis’ diabetic condition
complicated her pregnancy; on the advice of her physician, she
began working half-days in late March. In early April, her
physician certified that Migis was unable to work due to her
physical condition; shortly thereafter, she requested, and was
granted, a leave of absence.
Migis gave birth to her child on 8 September. Two weeks
later, her doctor authorized her to return to work on 7 November.
In early October, Migis met with Glenn Graves, director of Migis’
department, who informed her that her position had been
eliminated, but that he would ascertain whether she would be
qualified for a position in the Product Support Group of the same
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department. However, Migis was not offered that position; her
employment with Pearle ceased effective 11 November 1994.
At the time her position was eliminated, Migis’ annual
salary was $40,000. On 19 December, just shy of six weeks after
her employment ended with Pearle, Migis accepted employment with
CompuCom; but, she did not begin work there until approximately a
month later, 23 January 1995. At CompuCom, Migis held the
position of programmer/analyst, at a higher annual salary
($43,840), plus a five percent pay-on-performance bonus. (About
a year after she began, her annual salary increased approximately
$4,000, to $47,800, plus retaining the five percent pay-on-
performance bonus.) In February 1995, less than a month
after beginning at CompuCom, Migis filed this action against
Pearle, claiming that it discriminated and/or retaliated against
her on account of her sex and/or pregnancy by discharging her;
failing to allow her to return to work; discriminating against
her in the terms, conditions, and privileges of her employment;
and retaliating against her. She sought to have Pearle
permanently enjoined from discriminating against her in violation
of Title VII; a declaratory judgment that its practices were in
violation of Title VII; reinstatement, back pay, and/or front
pay; compensatory and exemplary damages; attorney’s fees; costs;
and pre — and post — judgment interest. The parties consented to
trial before a magistrate judge.
At her three-day bench trial in June 1996, Migis dropped her
claims for reinstatement and front pay. The magistrate judge
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ruled that Pearle violated Title VII when it eliminated Migis’
position in the Corporate Systems Group; but, that she failed to
prove discrimination in connection with Pearle’s subsequent
decision not to hire her for the position in the Product Support
Group. (Migis does not challenge the latter ruling.)
Migis was granted declaratory relief and awarded $7,233.32
in back pay and benefits, $5,000 in compensatory damages, and
$1,058.17 for prejudgment interest. The court declined to award
punitive damages. And, following a separate hearing on Migis’
request for approximately $110,000 in attorney’s fees and $6,400
in costs, she was awarded approximately $81,000 and $4,300,
respectively. Migis v. Pearle Vision, Inc., 944 F. Supp. 508,
517-18 (N.D. Tex. 1996).
II.
A.
According to Pearle, the evidence demonstrates that Migis’
position, along with all other Programmer/Analyst positions in
the Corporate Systems Group, was eliminated as part of a
reduction in force. Notwithstanding my concurrence on liability,
recitation of the facts bearing on liability is necessary to
explain the basis of my disagreement on the compensatory damages,
attorney’s fee, and cost issues.
Needless to say, the magistrate judge’s finding of a Title
VII violation is reviewed under the clearly erroneous standard.
FED. R. CIV. P. 52(a); see E.E.O.C. v. Clear Lake Dodge, 60 F.3d
1146, 1151 (5th Cir. 1995). And, it is more than well-
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established that “a finding is clearly erroneous when although
there is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction that
a mistake has been committed.” Id. (quoting Cupit v. McClanahan
Contractors, 1 F.3d 346, 348 (5th Cir. 1993), cert. denied, 510
U.S. 1113 (1994)). “We are not permitted to re-weigh the
evidence on appeal simply because we disagree with the choices
made by the district court.” Id. (citing Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 573-74 (1985)). “But we will
overturn the district court where there is only one permissible
view of the weight of the evidence.” Id.
The record supports the finding that Migis’ pregnancy was a
substantial factor in eliminating her position. For example,
after Migis went on leave of absence in April, memoranda dated 24
May and 22 July from Graves, director of the Information Services
Department, to Colin Heggie, chief financial officer, state that
two positions would be eliminated from the Corporate Systems
Group; and that the targeted positions were a Senior
Programmer/Analyst position held by Randy Ragsdale and a
Programmer/Analyst position held by Tracy Culpepper, both males.
The memoranda do not mention Migis or her position. Graves
testified that it was decided in late April or early May 1994
that all three positions, including Migis’, would be eliminated,
and that Migis’ position was not addressed because she was on
leave at the time and it was Pearle’s policy not to address
position eliminations affecting on-leave employees. The
- 22 -
magistrate judge found that Graves’ testimony might explain why
Migis was not told that her job was being eliminated, but it did
not explain why Heggie was not fully informed of the reductions
in the Corporate Systems Group.
The magistrate judge relied also on the testimony of Kelly
Keahon, vice president of human resources at the time of the
staff reductions. Keahon testified that she told Graves to
document carefully his actions and to communicate with Heggie
regarding the staff reductions; and that she informed Graves that
it was not necessary to include the elimination of Migis’
position in the memoranda because that elimination did not have
any financial consequences to Pearle during fiscal year 1994.
But, when Graves was asked by the court to explain why the
memoranda contain no reference to the elimination of Migis’
position, he responded that he should have addressed it. Keahon,
however, testified that, if Graves said that the reason he did
not refer to Migis in the memoranda was because he made a
mistake, that would be inconsistent with what she told him.
The magistrate judge also relied on handwritten notations on
the bottom of an organizational chart, made by Graves at one of
the initial meetings when the staff reductions were discussed.
The notations refer to one Senior Programmer/Analyst and one
Programmer/Analyst. Graves testified that the notations indicate
that there were preliminary discussions about retaining one
Senior Programmer/Analyst and one Programmer/Analyst. But, the
magistrate judge found that “the weight of the credible evidence”
- 23 -
led him to conclude that the notations refer to the positions
that were instead targeted for elimination, as indicated in the
memoranda.
The magistrate judge found further that Pearle’s explanation
was also undermined by the testimony of Mark McQuay, manager of
the Corporate Systems Group and Migis’ supervisor beginning in
early 1994. McQuay testified that Migis was not targeted for
elimination in the downsizing effort; that he recommended
retaining her; but that Graves was excited that Migis had taken
disability, instead of maternity, leave because Graves thought
(erroneously) that there was a distinction, and that he would not
have been able to eliminate her position had she taken maternity
leave. Graves denied making such a statement.
Pearle exhaustively attacks the findings, contending, inter
alia, that the magistrate judge misinterpreted Graves’ notations
on the organizational chart and mischaracterized McQuay’s
testimony. It asserts also that the magistrate judge ignored
other evidence, including: that all organizational charts
created after May 1994 consistently reflect the elimination of
all Programmer/Analyst positions in the Corporate Systems Group,
including the one formerly held by Migis; the handwritten
notation “upon return” beside Migis’ name on the organizational
chart, which, according to Pearle, corroborates Graves’ testimony
that Ragsdale and Culpepper’s positions were to be eliminated as
soon as possible, but that Migis’ position would be eliminated
“upon return” from her leave; and McQuay’s testimony regarding
- 24 -
his dissatisfaction with Migis’ performance. Pearle contends
further that the magistrate judge erred by relying on McQuay’s
testimony regarding Graves’ alleged statement about the nature of
Migis’ leave, because McQuay’s testimony is so internally
inconsistent and contradictory that no reasonable person would
believe it.
Pearle’s contentions are not without substance; it presented
considerable plausible evidence that the elimination of Migis’
position was part of a massive reduction in force. But, there is
also substantial, plausible evidence to support the magistrate
judge’s finding that Pearle’s explanation was, instead, a pretext
for discrimination. It goes without saying that credibility
determinations are “peculiarly within the province of the
district court” when it sits as a trier of fact. Kendall v.
Block, 821 F.2d 1142, 1146 (5th Cir. 1987); see also Patterson v.
P.H.P. Healthcare Corp., 90 F.3d 927, 933 (5th Cir. 1996)
(internal quotation marks and citations omitted) (“Where the
court’s finding is based on its decision to credit the testimony
of one witness over that of another, that finding, if not
internally inconsistent, can virtually never be clear error.”),
cert. denied, ___ U.S. ___, 117 S. Ct. 767 (1997). We will
declare testimony incredible as a matter of law only when it “is
so unbelievable on its face that it defies physical laws”.
United States v. Casteneda, 951 F.2d 44, 48 (5th Cir. 1992)
(internal quotation marks and citation omitted). Contrary to
- 25 -
Pearle’s assertion, McQuay’s testimony does not come close to
meeting that standard.
In sum, because the magistrate judge’s “account of the
evidence is plausible in light of the record viewed in its
entirety, [we] may not reverse it even though convinced that had
[we] been sitting as the trier of fact, [we] would have weighed
the evidence differently. Where there are two permissible views
of the evidence, the factfinder's choice between them cannot be
clearly erroneous.” Anderson, 470 U.S. at 573-74.
B.
Pearle challenges the damages on two grounds: back pay for
the one-month period between Migis’ accepting the CompuCom offer
and beginning work; and compensatory damages of $5,000. Although
I agree that the back pay award is not clearly erroneous, I
respectfully dissent from affirming the compensatory damages;
under our precedent, Migis failed to prove that she is entitled
to more than nominal damages for emotional distress.
Under Title VII, as amended by the Civil Rights Act of 1991,
42 U.S.C. § 1981a(a)(1), “a Title VII plaintiff who wins a back
pay award may also seek compensatory damages for future pecuniary
losses, emotional pain, suffering, inconvenience, mental anguish,
loss of enjoyment of life, and other nonpecuniary losses.”
Landgraf v. USI Film Products, 511 U.S. 244, 253 (1994) (internal
quotation marks and citation omitted). In awarding the
compensatory damages, the district court did not make supporting
findings. Pearle maintains that the award should be reversed
- 26 -
because Migis did not present any economic, medical, or
psychological evidence to support the award.
In Carey v. Piphus, 435 U.S. 247, 255-56 (1978), the Court
held that compensatory damages such as for emotional harm caused
by the deprivation of constitutional rights may be awarded only
when the claimant submits proof of actual injury. Although Carey
refers to damage awards under 42 U.S.C. § 1983, its reasoning
applies to claims for emotional harm under 42 U.S.C. § 1981.
Patterson, 90 F.3d at 938 & n.11. And, the same standards apply
for Title VII emotional distress claims. Id. at 940.
Under Carey, a claimant must present testimony and/or other
evidence to show the nature and extent of emotional harm caused
by the alleged violation. Patterson, 90 F.3d at 938. Carey
stated:
We use the term “distress” to include mental
suffering or emotional anguish. Although
essentially subjective, genuine injury in
this respect may be evidenced by one’s
conduct and observed by others.... [A]n award
of damages must be supported by competent
evidence concerning the injury.
435 U.S. at 264 n.20. “In order to establish intangible loss, we
recognize that Carey requires a degree of specificity which may
include corroborating testimony or medical or psychological
evidence in support of the damage award.” Patterson, 90 F.3d at
940. “Hurt feelings, anger and frustration are part of life.
Unless the cause of action manifests some specific discernable
injury to the claimant’s emotional state, we cannot say that the
specificity requirement of Carey has been satisfied.” Id.
- 27 -
The 1991 amendments allowing compensatory damages under
Title VII have been interpreted by the EEOC to require physical
manifestations in order to recover for emotional harm:
Damages are available for the intangible
injuries of emotional harm such as emotional
pain, suffering, inconvenience, mental
anguish, and loss of enjoyment of life.
Other nonpecuniary losses could include
injury to professional standing, injury to
character and reputation, injury to credit
standing, loss of health, and any other
nonpecuniary losses that are incurred as a
result of the discriminatory conduct. Non-
pecuniary losses for emotional harm are more
difficult to prove than pecuniary losses.
Emotional harm will not be presumed simply
because the complaining party is a victim of
discrimination. The existence, nature, and
severity of emotional harm must be proved.
Emotional harm may manifest itself, for
example, as sleeplessness, anxiety, stress,
depression, marital strain, humiliation,
emotional distress, loss of self esteem,
excessive fatigue, or a nervous breakdown.
Physical manifestations of emotional harm may
consist of ulcers, gastrointestinal
disorders, hair loss, or headaches.... The
Commission will typically require medical
evidence of emotional harm to seek damages
for such harm in conciliation negotiations.
Patterson, 90 F.3d at 939 (quoting EEOC POLICY GUIDANCE NO. 915.002
§ II(A)(2), at 10-12) (first emphasis added; second emphasis in
original). “Our standard of review for awards based on
intangible harms such as mental anguish is deferential to the
fact finder because the harm is subjective and evaluating it
depends considerably on the demeanor of witnesses.” Id. at 937-
38 (internal quotation marks and citations omitted). “We ...
review the district court’s emotional damage award for abuse of
discretion.” Id. at 940.
- 28 -
The Patterson case, discussed by the majority, is
instructive in evaluating Migis’ compensatory damage award. In
Patterson, the district court awarded Brown $40,000 for emotional
distress under § 1981 and awarded Patterson $150,000 for
emotional damage, mental pain and suffering under Title VII. Id.
at 939, 940. The evidence submitted by Brown in support of his
claim for emotional harm under § 1981 consisted of the following:
he testified that he felt “frustrated” and “real bad” for being
judged by the color of his skin; explained that the work
environment was “unbearable” and was “tearing my self-esteem
down”; and “stated that it ‘hurt’ and made him ‘angry’ and
‘paranoid’ to know that his supervisor referred to [him] as a
‘porch monkey’ or a ‘nigger’ and generally thought that he was
inferior to white employees.” Id. at 939.
Our court held that this evidence was insufficient to
support anything more than a nominal damage award, because Brown
did not present evidence with the specificity required by Carey,
did not testify as to any manifestations of harm listed by the
EEOC policy statement, and presented no corroborating testimony
or expert medical or psychological evidence of damages caused by
his alleged distress; no evidence suggested that Brown suffered
from sleeplessness, anxiety, or depression; and, immediately
after his constructive discharge, he obtained other employment
for a higher wage. Patterson, 90 F.3d at 939-40.
As noted, Patterson sued the same employer as did Brown.
Patterson’s emotional harm award was based on her testimony that
- 29 -
her retaliatory firing emotionally scarred her, that she suffered
mental anguish during her unemployment, and that she endured a
great deal of familial discord arising from having to leave her
children while she worked in other areas. Id. at 940. Our court
stated: “Obviously, the retaliatory discharge caused a
substantial disruption in Patterson’s daily routine.” Id. at
941. But, we concluded, again, that the evidence would not
permit anything more than nominal damages. Id. We noted, again,
that the record contained none of the listed evidentiary factors
in the EEOC policy statement; no corroborating testimony was
offered to support Patterson’s testimony; no evidence suggested
that she was humiliated or subjected to any kind of hostile work
environment; there was no expert medical or psychological
evidence to support a claim for emotional harm; and there was no
proof of actual injury. Id.
Migis testified that the elimination of her position was a
major inconvenience and burden because of financial obligations;
that she suffered from low self-esteem as a result of being
terminated and not offered a position for which she felt
qualified, and because she had been out of the work arena for
several months; that it was “a very discomforting feeling”; that
not being allowed to work impacted family finances and that she
had to buy used furniture for her child; that she suffered from
“general anxiety, stress or anxiety attacks”; that it “caused
some hardship on my marriage”; that it was “major stress”, and a
- 30 -
“[l]ot of crying, sleeplessness”; and that wondering whether she
could afford diapers and formula “was not fun”.
The majority acknowledges that the evidence of mental
anguish consists solely of Migis’ testimony, but concludes that
her testimony of anxiety, sleeplessness, stress, marital
hardship, and loss of self-esteem was sufficiently detailed to
support $5,000 for mental anguish. Even assuming that the
majority correctly interprets Patterson as not requiring medical
evidence or corroborating testimony, I cannot agree that Migis’
testimony supports more than a nominal damages award.
First, Patterson and the EEOC policy statement require proof
of a causal relationship between the discriminatory conduct and
the emotional harm. See Patterson, 90 F.3d at 938; id. at 939
(quoting EEOC policy statement). Unlike the plaintiff in
Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 808-09 (5th
Cir. 1996), who testified that her emotional distress resulted
from her superior’s harassment, Migis did not testify that the
emotional harm she claims to have suffered resulted from illegal
discrimination; indeed, one can conclude from her testimony that
her emotional suffering would have been the same had her position
been eliminated for non-discriminatory reasons. Unfortunately,
and understandably, some form of distress is inevitable with job
loss. But, for recovery of more than nominal damages for such
distress, the law requires proof that it is caused by illegal
discrimination, not just the job loss.
- 31 -
Second, pursuant to Patterson, Migis’ evidence for mental
distress lacks the specificity required by Carey and is
insufficient to support anything more than a nominal damage
award. See Carey, 435 U.S. at 266-67 (plaintiffs entitled to
recover “nominal damages not to exceed one dollar” for denial of
procedural due process, without proof of actual injury);
Patterson, 90 F.3d at 941 (vacating Title VII emotional distress
award and remanding to district court with instructions to award
nominal damages; amount not specified); Archie v. Christian, 812
F.2d 250, 252 (5th Cir. 1987) (modifying judgment to hold
plaintiff entitled to receive one dollar in nominal damages);
Davis v. West Community Hospital, 755 F.2d 455, 459 (5th Cir.
1985) (remanding for entry of judgment for nominal damages of one
dollar); Irby v. Sullivan, 737 F.2d 1418, 1433 n.30 (5th Cir.
1984) (even if no emotional damages are awarded, plaintiff
entitled to nominal damages not to exceed one dollar if he has
been victim of intentional racial discrimination). See also
Price v. City of Charlotte, 93 F.3d 1241, 1246 (4th Cir. 1996)
(plaintiff’s failure to prove compensatory damages for
constitutional violation “results in nominal damages typically
one dollar”), cert. denied, ___ U.S. ___, 117 S. Ct. 1246 (1997).
Although Migis’ testimony mentioned some of the factors in
the EEOC policy statement (sleeplessness, anxiety, stress,
marital strain, loss of self-esteem), she admitted, on cross-
examination, that she had not mentioned any of those factors in
her pre-trial deposition. She admitted also that she had not
- 32 -
sought counseling or therapy. There is no evidence that she was
humiliated or subjected to a hostile work environment. See
Patterson, 90 F.3d at 941; see also Bellows v. Amoco Oil Co., 118
F.3d 268, 277 n.28 (5th Cir. 1997) (Bellows’ testimony that
Amoco’s alleged discriminatory acts caused him to feel “less than
a man” and “ruined his reputation as a man” did not, “without
more”, sufficiently support an award of damages for emotional
harm), cert. denied, ___ U.S. ___, 118 S. Ct. 739 (1998); Annis
v. County of Westchester, ___ F.3d ___, 1998 WL 49317 (2d Cir.
1998) (plaintiff’s testimony that she was humiliated by the
gender discrimination she endured and sought counseling for it is
insufficient to warrant an award of compensatory damages because
“[s]he has not alleged any physical manifestations of her
emotional distress” and “introduced no affidavit or other
evidence to corroborate her testimony”); cf. Farpella-Crosby, 97
F.3d at 808-09 (affirming award of $7,500 compensatory damages
based on plaintiff’s testimony about hostile work environment,
harassment, and abusive treatment, corroborated by co-worker’s
testimony). She did not present any corroborating testimony and
did not offer any expert medical or psychological evidence of
damages caused by her claimed distress. See Patterson, 90 F.3d
at 939. Moreover, approximately two months after she was last
compensated by Pearle, she resumed work at a higher salary than
she received at Pearle. See id. at 939-40.
In short, the district court abused its discretion by
awarding more than nominal damages to Migis for emotional
- 33 -
distress. Therefore, I respectfully dissent from the majority’s
affirming that award.
C.
In his fee application, Migis’ counsel requested
approximately $110,000 for 385.25 hours of work performed by
attorneys and legal assistants and $6,400 for costs. Migis, 944
F. Supp. at 510. Over Pearle’s objections, approximately $81,000
in fees and $4,300 in costs were awarded. Pearle challenges
both; Migis, one item of disallowed costs.
In line with my concurrence in reversing the attorney’s fee
award and remanding for further proceedings, I agree that the
magistrate judge, when adjusting the lodestar, abused his
discretion by failing to adequately consider the results obtained
as compared to the relief sought.
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.
Concomitantly, I dissent from allowing costs for those
unsuccessful claims.
Finally, and perhaps most importantly, the majority fails to
give sufficient guidance for reconsideration of the lodestar
adjustment on remand, particularly with respect to Migis’ refusal
of the settlement offer and the relevance of the fees charged by
Pearle’s counsel. We should offer guidance on both, especially
the settlement offer subissue.
- 34 -
These issues inhabit familiar ground. For many years, that
terrain has been thoroughly and painstakingly analyzed, checked,
swept, and probed. But, that does not ensure that new booby
traps have not been set while courts were not on guard. Perhaps,
because the ground is so familiar, courts have become less
watchful, less demanding, than they should be. Perhaps, things
have become too routine, and courts have grown lax. Perhaps,
courts need to return to the basic course, and re-walk this
ground. In doing so, the district court’s errors loom large and
fatal.
1.
For starters, it is well to remember than only a reasonable
fee may be awarded. There is that word again — reasonableness.
Title VII provides, in pertinent part, that “the court, in its
discretion, may allow the prevailing party ... a reasonable
attorney’s fee ... as part of the costs”. 42 U.S.C. § 2000e-5(k)
(emphasis added).
Pursuant to the well-established, and equally well-known,
procedure for satisfying the statutory command that the
attorney’s fee be reasonable, the district court determines, and
then multiplies, the number of hours reasonably expended on the
litigation by the reasonable hourly rates for the participating
lawyers; it may adjust this “lodestar” in the light of the 12
well-known, relevant case-related factors enunciated in Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
See Farrar v. Hobby, 506 U.S. 103, 114-15 (1992); e.g., Louisiana
- 35 -
Power & Light Co. v. Kellstrom, 50 F.3d 319, 323-24 (5th Cir.),
cert. denied, ___ U.S. ___, 116 S. Ct. 173 (1995).
Admittedly, and as noted, “[a] request for attorney’s fees
should not result in a second major litigation.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). Nor do we require the
district court’s Johnson factor analysis “to be so excruciatingly
explicit ... that decisions of fee awards consume more paper than
did the cases from which they arose”. Louisiana Power & Light
Co., 50 F.3d at 331 (internal quotation marks and citation
omitted). On the other hand, when, as here, the fee request is
so excessive, especially in the light of the meager results
achieved, the request must be given the closest scrutiny.
Hour and rate determinations are reviewed only for clear
error, Louisiana Power & Light Co., 50 F.3d at 324; lodestar
adjustments, for abuse of discretion. Id. at 329. As for the
latter, “the district court’s lodestar analysis [is examined]
only to determine if the [district] court sufficiently considered
the appropriate criteria”. Id. (emphasis in original). Of
course, the challenger “bears the burden of showing that [a
change] is warranted.” Id.
As reflected in Farrar, 506 U.S. at 115, the Johnson factors
for the lodestar adjustment vel non hardly need repeating: (1)
required time and labor; (2) issues’ novelty and complexity; (3)
skill required to properly litigate them; (4) whether attorney
had to refuse other work; (5) his customary fee; (6) whether fee
fixed or contingent; (7) whether client or case circumstances
- 36 -
imposed any time constraints; (8) amount involved and results
obtained; (9) experience, reputation, and ability of attorneys;
(10) whether case was “undesirable”; (11) type of attorney-client
relationship and whether it was long-standing; and (12) awards
made in similar cases. Louisiana Power & Light Co., 50 F.3d at
329 (citing Johnson, 488 F.2d at 717-19).
In district court, Pearle objected to both the time and rate
amounts, relying on (1) inadequacies in billing records; (2)
Migis’ failure to prevail on her claim that Pearle’s refusal to
offer her a position in the Product Support Group was
discriminatory; (3) unnecessary work; (4) excessive time charged
for completion of routine tasks; and (5) lack of novel or complex
legal issues. Migis, 944 F. Supp. at 511-12.
The district court rejected Pearle’s contention that the
billing records were inadequate due both to the vagueness of the
description of services rendered and to counsel’s failure to
segregate the time spent on various claims. It found that Pearle
had not identified any specific entries that were duplicative,
repetitive, or inherently unreasonable, and concluded that the
records were “more than adequate”. Id. at 512.
The district court acknowledged that Migis’ claims were
based on two different employment decisions, id. at 510; but, it
concluded that her claims were related. Id. Accordingly, it
rejected Pearle’s contention that 85.5 hours spent on
unsuccessful claims should be excluded. Id. It also rejected
Pearle’s contention that 156.75 hours should be excluded because
- 37 -
they represented unnecessary or excessive time and “clerical”
work. Id. at 513.
And, although the district court agreed with Pearle’s
assertion that the issues were neither novel nor complex, it
disagreed that the number of hours invested in the case was
unreasonable. Id. It found significant defense counsel’s
billing Pearle over $200,000. Id. at 514.
The district court refused to award the requested hourly
rates of $300 for counsel and $70 for legal assistants, reducing
them to $250 for lead counsel, $200 for co-counsel, and $50 for
legal assistants. Id. at 514-15. (Pearle does not challenge
these rates on appeal.)
The resulting lodestar was approximately $90,000. But, the
district court found that “[t]he monetary damages awarded to
[Migis] simply [did] not justify a fee award” in that amount,
because it “would constitute the type of windfall repeatedly
condemned by the Supreme Court and the Fifth Circuit.” Id. at
516 (emphasis added). Therefore, based on the results obtained,
it reduced the lodestar — but, by only ten percent! Id.
Pearle also sought a reduction based on the contingent
nature of Migis’ fee. Her contingent-fee contract provides for a
fee of 45% of the amount recovered. However, it provides also
that, if fees are awarded in excess of that 45%, Migis’ fee
obligation is extinguished and her attorney keeps the fee
awarded.
- 38 -
Of course, a contingent-fee arrangement does not
automatically limit the fee award, Blanchard v. Bergeron, 489
U.S. 87, 92 (1989). Nevertheless, “[t]he presence of a pre-
existing fee arrangement may aid in determining reasonableness
[because] [t]he fee quoted to the client or the percentage of the
recovery agreed to is helpful in demonstrating the attorney’s fee
expectation when he accepted the case.” Id. at 93 (internal
quotation marks and citations omitted; emphasis added). Although
the contingent nature of the fee arrangement may be considered in
determining whether to reduce the lodestar, a lodestar
enhancement cannot be based on that factor. City of Burlington
v. Dague, 505 U.S. 557, 567 (1992).
Along that line, the district court refused to adjust
downward based on the contingent nature of the fee; nor would it
so adjust because of the case’s desirability (Pearle claimed
that, for applying the “undesirability” Johnson factor, the case
was, in fact, desirable). Migis, 944 F. Supp. at 516-17. As a
result, the court determined that Migis was entitled to fees of
$80,718.75.
I agree with Pearle that the district court clearly erred by
awarding fees to Migis as the prevailing party on all issues and
abused its discretion by not giving due weight to the most
critical Johnson factor — the relationship between relief sought
and obtained — as required by Farrar, 506 U.S. at 114.
- 39 -
a.
- 40 -
Hensley states that a “district court ... should [,inter
alia,] exclude from [the] initial fee calculation [,the
lodestar,] hours that were not reasonably expended”, and that the
prevailing party’s counsel “should make a good-faith effort to
exclude from a fee request hours that are excessive, redundant,
or otherwise unnecessary, just as a lawyer in private practice
ethically is obligated to exclude such hours from his fee
submission.” 461 U.S. at 434 (internal quotation marks omitted).
Pearle’s attack on the lodestar concerns unsuccessful claims,
discovery as to irrelevant evidence, and inadequate billing
records.
i.
Citing Hensley, the Supreme Court stated in City of
Burlington, 505 U.S. at 565: “[T]he statutory language limiting
fees to prevailing ... parties bars a prevailing plaintiff from
recovering fees relating to claims on which he lost”. Hensley
provides that, when a plaintiff succeeds on some, but not all, of
her claims, “two questions must be addressed”: (1) whether “the
plaintiff fail[ed] to prevail on claims that were unrelated to
the [successful] claims”; and (2) whether “the plaintiff
achiev[ed] a level of success that makes the hours reasonably
expended a satisfactory basis for making a fee award”. Hensley,
461 U.S. at 434.
The object of the first question is to determine the
successful and unsuccessful claims, and the degree to which such
claims are related; as stated, generally, it can and should be
- 41 -
answered in the lodestar calculation prior to any adjustment.
See id. at 434-35 (fees should not be awarded for unrelated
unsuccessful claims). But, if those claims are so interrelated
that no distinction can be made as to the time spent on each,
“the district court’s focus should shift to the results obtained
and adjust the lodestar accordingly”. Louisiana Power & Light
Co., 50 F.3d at 327 n.13.
The second question addresses the degree of success achieved
on the successful claims and, generally, is more appropriately
considered in determining the lodestar adjustment. See Hensley,
461 U.S. at 440 (“[T]he inquiry does not end with a finding that
the plaintiff obtained significant relief. A reduced fee award
is appropriate if the relief, however significant, is limited in
comparison to the scope of the litigation as a whole.”); Farrar,
506 U.S. at 114 (internal quotation marks and citations omitted)
(“if ... plaintiff has achieved only partial or limited success,
[the lodestar] may be ... excessive”; “[w]here recovery of
private damages is the purpose of ... civil rights litigation, a
district court, in fixing fees, is obligated to give primary
consideration to the amount of damages awarded as compared to the
amount sought”).
Obviously, the extent to which successful and unsuccessful
claims are related is crucial in determining whether fees may be
awarded for work on the latter. Hensley addresses four
situations. First, when a plaintiff presents “distinctly
different claims for relief that are based on different facts and
- 42 -
legal theories, ... work on an unsuccessful claim cannot be
deemed to have been expended in pursuit of the ultimate result
achieved”; accordingly, “no fee may be awarded for services on
the unsuccessful claim”. Hensley, 461 U.S. at 435.
Second, when the claims “involve a common core of facts[,]
or [are] based on related legal theories[,] [m]uch of counsel’s
time will be devoted generally to the litigation as a whole,
[and] it [will be] difficult to [separate] the hours expended [on
each claim]”; in such cases, “the district court should focus on
the significance of the overall relief obtained ... in relation
to the hours reasonably expended”. Id. (emphasis added).
Third, when “a plaintiff has obtained excellent results, ...
the fee ... should not be reduced simply because the plaintiff
failed to prevail on every contention.” Id.
And, finally, if “a plaintiff has achieved only partial or
limited success, the [lodestar] may be ... excessive[,] ... even
whe[n] the ... claims were interrelated, nonfrivolous, and raised
in good faith.” Id. at 436.
Congress has not authorized an award of fees
whenever it was reasonable for a plaintiff to
bring a lawsuit or whenever conscientious
counsel tried the case with devotion and
skill. Again, the most critical factor is
the degree of success obtained.
Id. (emphasis added).
As the district court and Migis’ opening statement
acknowledged, her claims were based on two different employment
decisions by Pearle: to eliminate her position; and not to offer
her another, 944 F. Supp. at 510. Migis was successful on the
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first, but not the second. Nevertheless, because the district
court found that both claims involved common facts or derived
from related legal theories, it included in the lodestar all
hours spent pursuing both claims.
The majority assumes arguendo that Migis is correct in
claiming her action cannot be broken into separate claims; and,
therefore, it mentions Migis’ failure to prevail on her claim of
discrimination in Pearle’s refusal to offer her a position in the
Product Support Group only in its discussion of the lodestar
adjustment under the eighth Johnson factor (amount involved and
result obtained). (In fact, as noted in its discussion of the
cost award, discussed infra, the majority apparently considers
the refusal to offer another position to have been of some
evidentiary value for the position elimination claim.) In my
view, Hensley requires that time spent on the unsuccessful claim
should be deducted prior to calculating the lodestar, rather than
when later considering whether to adjust the lodestar based on
the degree of success achieved.
The factual circumstances surrounding the decision to
eliminate Migis’ position in the Corporate Systems Group and the
decision not to offer her a position in the Product Support Group
were made at different times and by different decision-makers,
are easily distinguishable from an evidentiary and preparation
standpoint, and are not so interrelated that it would be
difficult to distinguish between the work done on each claim.
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Concerning her successful claim (position elimination),
Migis relied on her testimony and that of Graves, McQuay and
Rodriguez, whom she also deposed. She also deposed Gieseking,
Schwartz, and Smith; Smith did not testify at trial, and
Gieseking’s and Schwartz’s trial testimony was curtailed because
of the court’s exclusion of non-pregnancy-related evidence,
discussed below, and evidence regarding persons who were not
decision-makers.
For her unsuccessful claim (not offered another position),
Migis relied primarily on her testimony and that of Boswell and
Marshall, whom she also deposed. Although Migis subpoenaed
Melissa Kinnear, she neither called her as a witness nor deposed
her. Graves testified also about this claim; he and Migis were
the only witnesses whose testimony was relevant to both claims.
As stated, with the exception of Graves and Migis, none of these
witnesses offered any testimony that contributed to the success
of Migis’ position elimination claim.
Migis is not entitled to attorney’s fees for the hours spent
in pursuing this unsuccessful claim; and, therefore, the district
court clearly erred in including them in the lodestar.
ii.
Pearle asserts further that Migis’ counsel should not be
compensated for discovery relevant only to general sex (as
opposed to pregnancy) discrimination (including general hostility
toward gender, and Pearle’s managerial attitude toward female and
minority employees). As noted, such evidence was excluded at
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trial. But, the magistrate judge did not exclude time spent on
such discovery; and the majority does not address Pearle’s
contention.
For example, on 25 January 1996, counsel charged 9.25 hours
for “preparation for, and deposing, Mark McQuay, Russell Smith,
Rosie Rodriguez, and Carole Schwartz; review notes of same and
dictation.” (Emphasis added.) And, counsel charged 6.75 hours
on 22 February 1996 for preparing for, and deposing, Doris
Gieseking and Barry Boswell, and review of notes regarding same.
It is impossible to tell from these entries how many of those
hours were related to Gieseking and Schwartz, whose trial
testimony was severely curtailed, as noted, after the court
refused to allow Migis to elicit testimony from them about sex
discrimination unrelated to pregnancy, such as Pearle’s attitude
toward women generally.
Surely, prior to discovery, Migis’ counsel researched the
admissibility of such general sex discrimination; it is not
probative of pregnancy discrimination. See Todd v. Inn
Development & Management, Inc., 870 F. Supp. 667, 671 n.4 (D.S.C.
1994) (affidavit stating that employer had a consistent pattern
of firing female employees and replacing them with male employees
fails to address issue of pregnancy discrimination). See also
Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 357-58
(5th Cir. 1995) (derogatory remarks about race, sex, and national
origin not probative of discrimination on basis of disability);
E.E.O.C. v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 948
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(10th Cir.) (inquiry is “whether ... employer treats pregnancy or
pregnancy-related conditions differently than other medical
conditions”; thus, appropriate “comparison is ... between
pregnant and nonpregnant workers, not between men and women”),
cert. denied, 506 U.S. 817 (1992); Rauh v. Coyne, 744 F. Supp.
1181, 1183 (D.D.C. 1990) (evidence of racial animus excluded in
case alleging discrimination on basis of sex and marital status).
At trial, each time Migis’ counsel sought to introduce
evidence of general sex discrimination, the magistrate judge
ruled that it was not admissible, absent some case authority that
other gender-related evidence was relevant in a pregnancy
discrimination case. Although counsel stated that he would
provide such authority, it does not appear that he did so. In
any event, as noted, the evidence was not admitted. Yet time
spent on discovery on this area was included in the lodestar.
Where is reason?
Because these tasks did not contribute to the favorable
result on the position elimination claim, the hours devoted to
them are not compensable. Accordingly, the district court
clearly erred by including them in the lodestar. See Hensley,
461 U.S. at 436.
iii.
Along this line, Pearle maintains that, in order to enable
identification of distinct claims, Migis’ counsel’s records do
not adequately describe and disclose the work, and that the court
abused its discretion by not requiring Migis’ counsel to provide
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more detail. Again, the majority does not address this
contention. Based on my review of the billing records, I agree
that it is difficult to determine the number of hours spent on
each claim. For example, the 9 June 1996 entry is for 10.75
hours for “continued trial preparation, and outline of testimony
for plaintiff, Boswell, Graves, Marshall; lengthy conference with
client, and case walk-through; t/c with B. Jones re exhibits;
research re maternity leave cases”. It is impossible to tell how
much of this time involved outlining the testimony of Boswell and
Marshall, whose testimony, as noted, was relevant only as to
Migis’ unsuccessful claim. Other entries suffer from the same
deficiency. Of course, it is within the district court’s sound
discretion whether additional detail is necessary in order to
accurately determine the number of compensable hours for the
lodestar. However, it is the duty of the party seeking a fee
award to submit evidence supporting the time spent and to
“maintain billing time records in a manner that will enable a
reviewing court to identify distinct claims”. Hensley, 461 U.S.
at 433, 437. Where the documentation is inadequate, the district
court may reduce the fee accordingly. Louisiana Power & Light
Co., 50 F.3d at 324. See also Von Clark v. Butler, 916 F.2d 255,
259 (5th Cir. 1990) (“Absent a reliable record of the time
expended on the prevailing claim, it is within the discretion of
the district court to determine a reasonable number of hours that
should have been expended in pursuing the claim on which the
party prevailed.”).
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b.
Concerning the evaluation of the Johnson factors in
adjusting the lodestar, Pearle claims, and the majority agrees,
that the magistrate judge failed to give proper weight to the
most critical factor: degree of success obtained. See Farrar,
506 U.S. at 114 (internal quotation marks and citation omitted)
(emphasis added) (“the most critical factor in determining the
reasonableness of a fee award is the degree of success
obtained”). As stated, however, further guidance should be
provided for reconsideration of the lodestar adjustment on
remand. Specifically, the majority addresses neither the
relevance of Migis’ rejection of the settlement offer nor whether
it is appropriate to consider the attorney’s fees incurred by
Pearle.
In pre-trial disclosures and discovery responses, Migis
stated that she sought $25,000 in back pay and $300,000 each in
compensatory and punitive damages. The 1991 amendments to Title
VII provide, however, that the sum of compensatory and punitive
damages shall not exceed $300,000. 42 U.S.C. § 1981a(b)(3). In
any event, at trial, she sought far less: back pay and benefits;
and $50,000 each for compensatory damages (humiliation, loss of
self-esteem, inconvenience, and anguish) and punitive damages.
It hardly bears reminding that she was awarded far, far less than
that: only $7,233.32 in back pay and benefits and $5,000 in
compensatory damages, and no punitive damages. She also sought,
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and obtained, a declaratory judgment that Pearle engaged in
discriminatory practices.
In that I would hold that Migis is entitled to only nominal
compensatory damages, rather than $5,000, this obviously would
substantially impact her degree of success. Accordingly, I would
hold that, on remand, the district court should reconsider this
degree of success factor after it re-calculated the lodestar (had
my view prevailed, that recalculation would include deducting
time spent on unnecessary tasks and on Migis’ unsuccessful claim,
as discussed supra).
But, my view has not prevailed. The majority remands only
for reconsideration of the degree of success factor. In that
regard, I would offer the following guidance.
Had my view been adopted by the majority, then time spent in
pursuit of Migis’ unsuccessful claim and on other unnecessary
tasks would have been deducted in calculating a new lodestar.
Next, the district court, on considering this degree of success
factor in adjusting that new (recalculated) lodestar, would have
taken into account only the degree of success obtained for the
successful claim, avoiding duplication of the considerations used
to determine the hours reasonably expended when recalculating the
lodestar. See Shipes, 987 F.2d at 320 (“district court must be
careful ... not to double count a Johnson factor already
considered in calculating the lodestar”). The purpose of this
inquiry is to determine whether the (new) lodestar should be
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adjusted and, if so, how much, in the light of the results
obtained in comparison to the relief sought.
But, again, the majority is not requiring a recalculation of
the lodestar. Therefore, in adjusting it on remand, the district
court is not faced with this double-counting problem.
Accordingly, on remand, the adjustment should be even greater
than it would have been had a new, smaller lodestar been
calculated.
As was the case in Farrar, the outcome of this litigation
affects only the parties. It did not result in a significant
legal pronouncement that will benefit society; instead, it
“accomplished little beyond giving [Migis] the moral satisfaction
of knowing that a federal court concluded that [her] rights had
been violated” and compensating her for a relatively short period
of unemployment. See Farrar, 506 U.S. at 114 (internal quotation
marks and citation omitted). As noted supra, the Supreme Court
has stated that, “[w]here recovery of private damages is the
purpose of ... civil rights litigation, a district court, in
fixing fees, is obligated to give primary consideration to the
amount of damages awarded as compared to the amount sought.” Id.
at 114 (emphasis added). In this regard, and as the magistrate
judge recognized, although Migis testified that a declaration
that Pearle violated the law was equally as important to her as
damages, that fact, standing alone, would not justify an award of
attorney’s fees. See id.; Migis, 944 F. Supp. at 516.
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Accordingly, primary consideration must be given to a comparison
of the damages amounts sought and received.
Although the magistrate judge acknowledged, pursuant to
Farrar, that the degree of success is the most critical factor in
determining the reasonableness of the fee award, he reduced it by
only ten percent (from $89,687.50 to $80,718.75), despite the
fact that Migis recovered only a fraction of the damages sought.
Accordingly, despite stating that a $90,000 fee “would constitute
the type of windfall repeatedly condemned by [both] the Supreme
Court and” our court, the district court nevertheless concluded,
somehow, that a $81,000 fee would not. Migis, 944 F. Supp. at
516. And, although the district court complied with Farrar’s
directive to consider Migis’ limited success, its opinion does
not explain why such a minor reduction is sufficient to prevent a
windfall. See Louisiana Power & Light Co., 50 F.3d at 330. Its
opinion reflects, however, that the district court may have been
influenced by the settlement amount offered Migis.
The magistrate judge stated that, because Migis received
$12,233.32 in damages, and Pearle never offered more than $10,000
to settle, Migis’ counsel “should not be unduly penalized because
his client pursued a course of action that resulted in a greater
recovery.” Migis, 944 F. Supp. at 516. In that reason and
reasonableness are at stake, I do not understand the district
court’s rationale. Because I believe that Migis should have
recovered only nominal damages for emotional distress, her total
damages would be less than the $10,000 offered four months before
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trial. In any event, it is quite debatable, at least to me, that
the relatively small amount awarded over the $10,000 is a
“greater recovery”, especially when one considers the greater
price paid in time and money by the parties, counsel, and federal
court system in order for Migis to gain that slight increment.
Again, reasonableness is lost. As mentioned, the majority does
not address the relevance of Migis’ refusal to settle.
In Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332
(4th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 483 (1996),
the Fourth Circuit stated that a court may consider a plaintiff’s
rejection of a settlement offer as one of several factors
affecting its fee award. Id. at 1337. Sheppard was a mixed-
motives case in which the plaintiff proved that pregnancy
discrimination played a part in her discharge, but the employer
established that, absent discrimination, it would have reached
the same decision.
In such cases, Title VII, as amended by the Civil Rights Act
of 1991, provides that the court “may” grant attorney’s fees. 42
U.S.C. § 2000e-5(g)(2)(B). Because this is not a mixed-motives
case, the fee award is governed by § 2000e-5(k), which, as noted
earlier, provides similarly that “the court, in its discretion,
may allow the prevailing party ... a reasonable attorney’s fee
... as part of the costs.” (Emphasis added.)
In that a fee award is discretionary under both provisions,
I see no reason why consideration of settlement offers should not
be the same under both. After all, “where a rejected settlement
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offer exceeds the ultimate recovery, the plaintiff — although
technically the prevailing party — has not received any monetary
benefits” from her attorney’s post-offer services. See Marek v.
Chesny, 473 U.S. 1, 11 (1985). The same reasoning applies where,
as here, the award is only slightly greater than the offer.
Because I agree with the Fourth Circuit that such consideration
will further Farrar’s concerns about the degree of success
achieved by the plaintiff, I would hold that a court may consider
a plaintiff’s rejection of a settlement offer (as well as a
plaintiff’s settlement demands) as a factor in making the degree
of success and other relevant evaluations for its discretionary,
reasonable fee award.
This action was filed in February 1995; the offer was made
approximately a year later; and trial took place about four
months after that. Migis asserts that the settlement offer was
unreasonable because it was not made until four months before
trial and covered not only her claims, but also attorney’s fees
and costs, and included, as well, non-monetary, prohibitory
matters (such as Migis agreeing never to seek employment with
either Pearle or any affiliated entities in the future). At that
time, the fees, at the later allowed $250 hourly rate (which
seems quite high for this case), would have totaled $30,000, and
the costs exceeded $2,000. Migis concludes, therefore, that the
offer was effectively no offer at all, because it “was less than
one-fourth of the monetary value of the case at the time the
offer was made”. (Emphasis in original.) (The offer having been
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rejected, the ultimate fee award of $81,000 provided an
additional $51,000 to Migis’ counsel for effort that gained Migis
very little, but gained her counsel a great deal.)
Of course, if the fees of $30,000 are deducted from that
calculation, the settlement offer, at least in monetary terms,
was more than Migis’ lost pay and benefits. At oral argument in
our court, her counsel persisted in including his fees in
calculating the “value” of Migis’ case. Needless to say, counsel
errs by calculating the value of a case, for settlement purposes,
from his, rather than his client’s, perspective. Having entered
into a contingent-fee agreement, the value of his fees, for
settlement purposes, is the percentage of his client’s recovery
that he contracted to accept, not the amount that might be
awarded if the case is not settled. And, again needless to say,
the settlement decision is the client’s.
As discussed, Migis’ fee agreement permits counsel to keep a
fee award if it exceeds 45% of Migis’ maximum recovery. Surely,
both when he took the case, and when the settlement offer was
made, her counsel had good reason to feel that any recovery would
be relatively low: first, as shown, liability vel non was a close
question; second, Migis’ maximum back pay was quantified long
before she filed this action (began working for another at higher
salary approximately two months after last paid by Pearle and
four weeks before action filed); and third, recovery of a large
amount on Migis’ compensatory and punitive damages claims had a
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small chance of success. Accordingly, it is quite arguable that
this case was fee, not client, driven.
Along this line, one possible scenario would be a hope held
by Migis and/or her counsel that the fee award would exceed 45%
of her recovery; if so, they would both win — she would keep all
of the award and he would have a much larger fee. Surely, the
fee-shifting provision in Title VII was not meant for this.
Where is reason? Where is reasonableness?
Obviously, another possible scenario for pressing forward
with the case, and running up the excessive amount of time and
expenses by Migis’ counsel, was that Migis, acting on, or
against, the advice of counsel, felt that her potential damages
far exceeded the $10,000 offered. This, of course, was Migis’
choice, however ill-advised and costly. She, not her attorney
(but, I assume, based on his counsel), rolled the dice. But,
when you gamble, you win or you lose. And when the client loses,
a contingent fee counsel must lose as well. (Or, at least,
should lose. That is not the case here. Reason has taken a back
seat.)
This is the underlying purpose of Farrar’s focus on the
degree of success: “to prevent a situation in which a client
receives a pyrrhic victory and the lawyers take a pot of gold”.
Sheppard, 88 F.3d at 1339; see also City of Burlington, 505 U.S.
at 563 (federal fee-shifting statutes “were not designed as a
form of economic relief to improve the financial lot of
lawyers”). Therefore, in order to prevent this windfall to
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counsel, I think the court, on remand, should give considerable
weight to this rejection-of-settlement-offer factor, and,
accordingly, greatly adjust the lodestar downward.
To counter Pearle’s windfall-charge, Migis points out that
Pearle was billed $206,000 in fees and $14,671 in expenses. She
asserts that Pearle’s attorneys’ expenditure of time (1,000
hours) and their fees and expenses (approximately $220,000) are
further evidence that her request and the award were reasonable.
Pearle moved for a protective order against disclosure of
documents and testimony by its counsel regarding such fees, on
the ground that Migis’ attempt to put those fees at issue was
groundless and constituted harassment. Although the record
contains no ruling on this motion, it apparently was denied, at
least in part, in that, at the hearing on the fee application,
Migis’ counsel was permitted to question defense counsel
extensively about the fees charged Pearle.
The district court’s opinion refers also to the fees by
Pearle’s counsel. 944 F. Supp. at 513-14. Because that
reference appears in the section of the opinion rejecting
Pearle’s contention that the number of hours was unreasonable
because this case involved no novel or complex issues, it is
unclear what, if any, effect it had on the district court’s
overall reasonableness determination. The majority refers to the
magistrate judge’s notation that Pearle amassed over $200,000 in
attorney’s fees, but does not discuss whether consideration of
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those fees is appropriate in determining the reasonableness of
Migis’ fees.
I would hold that Pearle’s counsel’s fees are not relevant
in determining whether Migis’ counsel’s fees are reasonable in
relation to the degree of success obtained. Twenty years ago,
this was explained most adequately by the Seventh Circuit in
Mirabal v. General Motors Acceptance Corp., 576 F.2d 729 (7th
Cir.), cert. denied, 439 U.S. 1039 (1978):
[A] given case may have greater precedential
value for one side than the other. Also, a
plaintiff’s attorney, by pressing
questionable claims and refusing to settle
except on outrageous terms, could force a
defendant to incur substantial fees which he
later uses as a basis for his own fee claim.
Moreover, the amount of fees which one side
is paid by its client is a matter involving
various motivations in an on-going attorney-
client relationship and may, therefore, have
little relevance to the value which
[plaintiff’s attorney] has provided to his
clients in a given case.
Id. at 731. See also Samuel v. University of Pittsburgh, 80
F.R.D. 293, 294 (W.D. Pa. 1978) (emphasis added) (“the number of
hours required by opposing counsel to defend a claim has little
relevance to the reasonableness of the number of hours which
plaintiffs’ counsel devoted to pursuing a cause of action on
behalf of a plaintiff in a given case”).
This case certainly appears to be a classic example of “the
tail (attorney’s fees) wagging the dog (the merits)”. Attorneys
serve clients to help (it is assumed) resolve disputes (the
sooner the better); clients and cases don’t exist to serve — much
less, to save — attorneys.
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It is fervently hoped that, on remand, the re-evaluation of
the Johnson degree of success factor will result in restoring the
proper reality and proportion — will result in restoring reason
and reasonableness — to this case. It is most regrettable that,
first, there will not also be a recalculation of the lodestar.
c.
Migis requests fees of $7,500 for this appeal (30 hours at
$250 per hour, excluding her cross-appeal), an amount that would
exceed the total amount Migis would recover, had the compensatory
damages been reduced from $5,000 to a nominal amount. Although
her counsel was successful (prevailed) in defending on liability,
back pay, compensatory damages, and allowed costs, he was
unsuccessful, to a large extent, as to the attorney’s fee award.
The majority does not address this request. Obviously, an
award of $7,500 would be unreasonable and constitute an
additional windfall to counsel.
2.
Among other allowed costs, Migis was awarded those
associated with five depositions taken in connection with her
unsuccessful not-offered-another-position claim. Migis, 944 F.
Supp. at 517. The district court did not allow witness and
process fees for two witnesses who did not testify at trial,
$170.13 for a copy of Migis’ deposition videotape (the subject of
her cross-appeal), and expenses related to computerized legal
research, courier fees, postage, and photocopying expenses. Id.
at 517-18. Total awarded costs, other than attorney’s fees, were
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$4,297.32. Id. at 518. “We will reverse ... only on a clear
showing of abuse of discretion.” See Fogleman v. ARAMCO (Arabian
American Oil Co.), 920 F.2d 278, 285 (5th Cir. 1991).
a.
Pearle disputes the award of costs for the pursuit of Migis’
unsuccessful not-offered-another-position claim. The majority
concludes that, “[e]ven assuming that it is feasible to segregate
costs by the two claims Migis prosecuted, Pearle Vision’s refusal
to rehire her in a new position was arguably of evidentiary value
to the claim on which she did prevail -- discrimination in her
termination -- even if the refusal to rehire her was not itself
found to be a separate Title VII violation.” Maj. Op. at 15.
As stated supra, the factual circumstances surrounding
Migis’ successful position-elimination claim and her unsuccessful
not- offered-another-position claim are easily distinguishable
from an evidentiary and preparation standpoint. The decisions
were made at different times by different decision-makers, and
most of the witnesses who testified regarding the unsuccessful
claim offered no testimony that contributed to the success of her
position- elimination claim. Accordingly, for the same reasons
that attorney’s fees for the unsuccessful claim should not have
been awarded, costs associated with pursuing it are not
reasonable and should have been disallowed.
b.
I agree that the district court did not abuse its discretion
by disallowing Migis’ request for $170.13 for her deposition
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videotape copy. Perhaps, as part of trial preparation, counsel
wanted the tape to observe Migis’ facial expressions, or other
body language, or voice level. But, surely, he was present when
she was deposed and could have made those observations then.
Perhaps counsel wanted it so that Migis could watch it in order
to better prepare to testify. One can only wonder.
But, more importantly, in the light of the small monetary
amount at stake, compared to the cost in judicial resources and
to the parties in resolving this issue, one can also only wonder
— indeed, marvel — why this cross-appeal was taken. At oral
argument, Migis’ counsel stated it was because of the larger
issue — awarding costs for videotapes. But, the larger issue was
not at hand. Obviously, counsel should have saved this question
for when it is at issue; at stake was only a copy of Migis’ (the
plaintiff’s) deposition.
Whatever the reason counsel wanted the copy, the copy was
not necessary. And, to say the least, the cross-appeal is most
inappropriate. (An adage comes to mind: “whenever someone says,
‘it’s not the money, it’s the principle’ ... it’s the money!”)
Accordingly, I would have required Migis’ counsel to show cause
why sanctions should not be imposed.
III.
For the foregoing reasons, I concur in affirming liability,
back pay, and denial of the videotape copy cost; and in reversing
the attorney’s fee and remanding for reconsideration. But, as to
that fee, I would offer far more guidance, especially on the
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settlement-rejection factor. And, I respectfully dissent from
the affirmance of the compensatory damages, from allowing
attorney’s fees and associated costs for the pursuit of Migis’
unsuccessful not-offered-another-position claim, and from not
requiring the lodestar to be otherwise recalculated on remand to
include only the hours reasonably expended.
We wring our hands and decry the increase in litigation and
attendant costs and other excesses, such as frivolous and
exorbitant claims, and sky-high, unrealistic, and otherwise
unreasonable monetary demands and fees. We bemoan the too often
seen lack of civility and professionalism and ethics, as well as
the pursuit by some lawyers of, not excellence, but numbing
mediocrity, consistent with the heralded “dumbing of America”.
Yet, we seem unable or, worse still, unwilling to do anything
about it. Instead, we ask why we have this lack of both reason
and reasonableness. The answers have been with us from the
beginning; two, among many, come quickly to mind: “power fills a
vacuum”, and “money makes the world go-around”. Reason and
reasonableness can be restored; but, only when we are willing to
do so.
I close as I began. Perhaps this lengthy, back-to-the-
basics analysis will aid in helping spark a new — and much
needed — look at Title VII damages and fee awards. Whatever the
case, of this I am certain: Title VII was not meant to be used
as it has been in this case. It was meant to correct certain
discriminatory wrongs and to provide reasonable compensation to
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those injured and, when deemed appropriate, their counsel. This
case has gone far, far afield. The result is far from being
reasonable. In fact, it is beyond reason; hence, beyond the law.
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