Thomas, Valerie v. Natl Ftbl Leag Plyrs

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2001 Decided December 11, 2001

No. 01-7023

Valerie Thomas,
Appellee

v.

National Football League Players Association,
Appellant

Appeal from the United States District Court
for the District of Columbia
(No. 91cv03332)

Joseph A. Yablonski argued the cause the for appellant.

David L. Rose argued the cause for the appellee. Joshua
N. Rose was on brief for the appellee.

Before: Sentelle, Henderson and Tatel, Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

 Karen LeCraft Henderson, Circuit Judge: The National
Football League Players Association (NFLPA) appeals an
award of attorney's fees to Valerie Thomas, a successful
plaintiff in a discrimination action against the NFLPA, and
the denial of costs against Rita Raymond and Julie Taylor-
Bland,1 unsuccessful plaintiffs in the same action. For the
reasons set out below, we affirm the fee award to Thomas and
remand for entry of an award of costs to the NFLPA against
Raymond and Taylor-Bland.

I.

At a March 1988 board meeting, the NFLPA's Board of
Directors decided to lay off eleven per cent of its workforce.
After the meeting a number of employees, including Thomas
and Taylor-Bland, met with the new Board president, George
Martin. Thomas, who had previously filed a charge of race
and gender discrimination with the Equal Employment Op-
portunity Commission, complained of the lack of promotional
opportunities for blacks and women at the NFLPA. At a
second staff meeting the following month, Thomas again
raised these concerns. Subsequently, Martin and NFLPA
Board vice president Mike Davis conducted private interviews
with employees, including Thomas, Taylor-Bland and Ray-
mond.

On March 18, 1988 Gene Upshaw, NFLPA Executive Di-
rector, after conferring with Martin and Davis, laid off Thom-
as, Raymond and four other employees. On April 12, 1988
Upshaw terminated all but one of the six laid-off employees
"for cause," namely that they "made libelous and slanderous
statements concerning NFLPA's executive personnel, violat-
ed the confidentiality and trust required [of them], were
disloyal to NFLPA, and engaged in other acts which were
intended to undermine NFLPA's effectiveness in serving the
interests of its members." Joint Appendix (JA) 154. Accord-
ing to Upshaw's trial testimony, he fired Thomas and Ray-
mond because of statements they had made to Martin and
Davis and because he believed they were responsible for

__________
1 Julie Taylor-Bland was formerly Julie Bland.

circulating a pamphlet critical of the NFLPA's treatment of
employees. A short time later Taylor-Bland, who had been
Upshaw's secretary, was reassigned to what she considered
an inferior position. She resigned on June 13, 1988. Thomas
and Raymond pursued union grievances over their termi-
nation resulting in an arbitrator's award ordering them rein-
stated. The NFLPA, however, did not reinstate them.

Thomas, Raymond and Taylor-Bland filed this suit in De-
cember 1991 pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C.A. ss 2000e et seq. Their Fourth Amended
Complaint alleged the NFLPA (1) failed to promote all three
plaintiffs as a part of a pattern of racial and gender discrimi-
nation in promotions; (2) laid off Thomas and Raymond and
transferred Taylor-Bland on account of their race and gender
and in retaliation for Thomas's filing a discrimination charge,
Raymond's filing a grievance2 and the three employees' vocal
opposition to discriminatory practices; (3) discharged Thomas
and Raymond and constructively discharged Taylor-Bland on
account of their race and gender and in retaliation for their
opposition to discriminatory practices; (4) failed to reinstate
Thomas and Raymond pursuant to the arbitrator's award on
account of their race and gender and in retaliation for their
protected activities; and (5) failed to pay Thomas a salary
equal to those of male employees doing substantially the same
work.

During a bench trial in December 1995, the district court
dismissed the arbitration claim and granted judgment as a
matter of law in the NFLPA's favor on the pattern of
discrimination claim.3 After trial the district court issued a
memorandum opinion and order on July 24, 1996 granting
judgment in favor of Thomas on her retaliation claims and
awarded her back pay and benefits of $70,840 (plus prejudg-
ment interest) for the period from her March 1988 lay-off to
December 1989, by which time, the court concluded, Thomas

__________
2 In 1987 Raymond had complained to her local of race and
gender discrimination after being denied a promotion for which she
applied.

3 The equal pay claim had been dismissed by stipulated order on
October 13, 1995.

would have been re-employed had she diligently sought new
employment. At the same time the court granted judgment
in favor of the NFLPA on all of Raymond's and Taylor-
Bland's claims. JA 167.

On August 1, 1996 the NFLPA filed a bill of costs, assert-
ing it was the prevailing party and therefore entitled to
recover costs against Raymond and Taylor-Bland "totally and
completely" and "on eight of the ten race, sex, and retaliation
claims asserted by Thomas." JA 168. The district court
denied the NFLPA its costs in an order filed October 15, 1996
and in a memorandum filed November 26, 1996.

The NFLPA appealed the judgment in favor of Thomas.
This court affirmed the judgment but remanded for the
district court to reconsider the amount of prejudgment inter-
est. Thomas v. National Football League Players Ass'n, 131
F.3d 198 (D.C. Cir. 1997) (as vacated in part on rehearing
Feb. 25, 1998).4

After remand the district court issued a memorandum
order and an amended judgment on March 25, 1999 awarding
Thomas $73,390.60 in back pay, fringe benefits and pre-
judgment interest, plus post-judgment interest from October
21, 1996. JA 213-15. On May 28, 1999 Thomas filed a
motion for costs, including attorney's fees pursuant to 42
U.S.C. s 2000e-5(k),5 of $563,637, JA 216, which she correct-
ed to $505,138.23 on June 30, 1999, JA 406. In a memoran-
dum opinion and order filed March 29, 2000 the district court
denied the motion but granted leave to file a new motion
conforming to guidelines set out in the opinion. JA 457.

__________
4 The NFLPA also appealed the denial of its costs but the court
did not reach the issue.

5 This section provides:

In any action or proceeding under this subchapter the court, in
its discretion, may allow the prevailing party, other than the
Commission or the United States, a reasonable attorney's fee
(including expert fees) as part of the costs, and the Commission
and the United States shall be liable for costs the same as a
private person.

Thomas filed a new motion on August 29, 2000 seeking total
costs of $394,950, including attorney's fees of $355,193. JA
466. In a memorandum order filed December 15, 2000 the
district court reduced the fee award to approximately
$338,000.6 JA 501-10.

The NFLPA appealed both the amount of the attorney's
fees awarded and the denial of its costs. We address the
challenges separately.

II.

On appeal we may overturn the district court's award of
attorney's fees " 'only if it represents an abuse of discretion.' "
Williams v. First Government Mortgage and Investors Corp.,
225 F.3d 738, 746 (D.C. Cir. 2000) (quoting Copeland v.
Marshall, 641 F.2d 880, 901 (D.C. Cir. 1980) (en banc)).
Further, the district court's underlying findings of fact will be
sustained unless clearly erroneous. See City of Riverside v.
Rivera, 477 U.S. 561, 572 (1986). Applying these standards
we uphold the district court's attorney's fee award.

The NFLPA contends the amount of the attorney's fee
award is excessive for three reasons. First, it challenges the
fee award on the ground it is excessive in relation to the
limited success achieved, given that only one of three plain-
tiffs prevailed on only two of her claims. In Hensley v.
Eckerhart, 461 U.S. 424 (1983), the United States Supreme
Court laid out the standards for awarding fees to a plaintiff
who, like Thomas, achieves only limited success:

Where the plaintiff has failed to prevail on a claim that is
distinct in all respects from his successful claims, the
hours spent on the unsuccessful claim should be excluded
in considering the amount of a reasonable fee. Where a
lawsuit consists of related claims, a plaintiff who has won
substantial relief should not have his attorney's fee re-

__________
6 The court provided only an estimate of the new figure in
recognition that "the several deductions required by the rulings set
forth in [its] memorandum w[ould] have to be calculated by plain-
tiff's counsel (and a new form submitted)." JA 507.

 duced simply because the district court did not adopt
each contention raised. But where the plaintiff achieved
only limited success, the district court should award only
that amount of fees that is reasonable in relation to the
results obtained.

461 U.S. at 440. We conclude the district court reasonably
applied the Hensley factors in calculating Thomas's fee
award.

"Evaluation of the interrelatedness of several claims within
a single lawsuit, and of the legal work done on those claims, is
most appropriately a task for the district court that heard and
decided the case...." Hensley, 461 U.S. at 453 (Brennan, J.,
concurring). The district court adequately performed the task
here. In the March 29, 2000 decision denying Thomas's
initial fee petition the district court acknowledged the limited
nature of her success and properly segregated Thomas's
successful claims from the unsuccessful ones. The court
expressly found that "her unsuccessful claims of discriminato-
ry layoff and discharge were related to her successful claim of
discrimination" but that her "pattern and practice claim of
discriminatory failure to promote was 'distinctly different'
from her other claims" and that her counsel therefore "may
recover no fees for their work on that claim." JA 462. The
court also concluded, appropriately, that Thomas should not
recover fees "for segregable time devoted to the failed indi-
vidual claims of Ms. Raymond and Ms. Taylor-Bland." JA
462. While noting that Thomas's counsel had "already
backed out of the fee petition 'time and expenses unique to
the factual proof of the pattern of promotions claim and to the
individual claims of Raymond and Bland,' " JA 462-63,7 the
court emphasized that the resubmitted costs motion should be
limited to fees incurred "in connection with Ms. Thomas's
claim of retaliation and of discriminatory layoff and dis-

__________
7 According to Thomas's counsel's declaration, they had "excluded
approximately $42,000 of time and expenses from the amount
claimed ... based on lack of success on the Raymond and Bland
claims and on the statistical promotion case." JA 451.

charge." See JA 463. After Thomas resubmitted her motion,
the court noted that the new fee amount was "some 22
percent less than the amount previously requested," JA 501,
and found that counsel had "made a good-faith effort to 'back
out' time principally related to plaintiff's pattern and practice
claims and the failed individual claims of Ms. Raymond and
Ms. Taylor-Bland," JA 507. We cannot say this finding is
clearly erroneous. Nonetheless, the court further reduced
the time claimed by 23.75 hours based on the NFLPA's
specific objections, see JA 501-03, and found that the result-
ing award of approximately $338,000 was not "unreasonable
in relation to the overall result achieved" given the length of
the litigation and the "dilatory" defense waged, JA 508-09.8
This finding too must be sustained. That the fees awarded
are, as the district court acknowledged, "nearly five times the
amount of plaintiff's recovery," JA 507, does not make them
excessive. See City of Riverside, 477 U.S. at 576 ("[R]eason-
able attorney's fees under s 1988 are not conditioned upon
and need not be proportionate to an award of money dam-
ages."); cf. Williams, 225 F.3d at 747 ("declin[ing] to read a
'rule of proportionality' into the [District of Columbia Con-
sumer Protection Procedures Act]").

The NFLPA further challenges the fee award on the
ground Thomas did not offer adequate billing records to
substantiate the apportionment of time among the successful
and unsuccessful claims. We reject this contention as well.
The district court acknowledged that the records "were not in
the best of shape,"--and accordingly reduced the costs
awarded Thomas for time spent responding to the NFLPA's
interrogatories about the records. JA 502-03. Nevertheless,
the court found the records sufficient to support the fee
awarded and, reviewing the record, we cannot say its finding
was clearly erroneous.

__________
8 The court characterized the defense as " 'dilatory' in the classic
sense, ... not to state or imply that the defense was in any way
improper, or harassing, or oppressive" but "simply the unfortunate
stuff of modern, knock-down, drag-out litigation." JA 508.

 Finally, the NFLPA asserts that under Rule 68 Thomas is
ineligible for any costs, including attorney's fees, incurred
after August 14, 1995. Rule 68 provides in relevant part:

At any time more than 10 days before the trial begins, a
party defending against a claim may serve upon the
adverse party an offer to allow judgment to be taken
against the defending party for the money or property or
to the effect specified in the offer, with costs then
accrued. If within 10 days after the service of the offer
the adverse party serves written notice that the offer is
accepted, either party may then file the offer and notice
of acceptance together with proof of service thereof and
thereupon the clerk shall enter judgment. An offer not
accepted shall be deemed withdrawn and evidence there-
of is not admissible except in a proceeding to determine
costs. If the judgment finally obtained by the offeree is
not more favorable than the offer, the offeree must pay
the costs incurred after the making of the offer.

Fed. R. Civ. P. 68. The NFLPA contends that its August 14,
1995 offer of $60,000 to the three plaintiffs shifted all post-
offer costs, including attorney's fees, to Thomas because the
offer exceeded her final recovery which, if pre-judgment
interest were calculated at the 52-week Treasury-Bill rate as
of that date, was only $59,018.70, that is, below the $60,000
offer of judgment. We reject this argument for two reasons.

First, the district court in fact calculated pre-judgment
interest at the prime rate of interest rather than at the
Treasury-Bill rate. See JA 167. The NFLPA does not
dispute that with interest calculated at the higher prime rate
Thomas's final recovery exceeds the NFLPA's $60,000 offer
of judgment. Nor can the NFLPA effectively challenge the
propriety of using the prime rate. See Forman v. Korean
Air Lines Co., Ltd., 84 F.3d 446, 451 (D.C. Cir.), cert. denied,
519 U.S. 10 (1996) ("[W]e think the Seventh Circuit is cor-
rect--that the prime rate is not merely as appropriate as the
Treasury Bill rate, but more appropriate....") (emphasis
original; citing In re Oil Spill by the Amoco Cadiz Off the
Coast of France, 954 F.2d 1279, 1332 (7th Cir.1992)).

 Second, we agree with the Seventh Circuit's decision in
Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075 (7th Cir.
1999), that an unallocated offer of judgment to multiple
defendants is not effective under Rule 68. The Seventh
Circuit rested its decision on two grounds: (1) "A judgment
less favorable than the offer requires that a plaintiff pay the
defendant's usually substantial post-offer costs and [t]here
must therefore be a clear baseline from which plaintiffs may
evaluate the merits of their case relative to the value of the
offer" and (2) "courts also need easily comparable sums."
164 F.3d at 1076. Because the record does not reflect that
the individual plaintiffs knew the value to each of them of the
lump-sum offer, they "simply could not have evaluated the
individualized values of the offer" and "without two precise
figures to compare, the district court was in no position to
resolve the lack of precision." Id. Accordingly, we conclude
the joint offer of judgment did not trigger Rule 68's cost-
shifting provision.

For these reasons we conclude the district court's award of
attorney's fees to Thomas should be affirmed.9

__________
9 The NFLPA also contends the district court was required to
consider as a factor in awarding fees that Thomas and her counsel
adopted "unreasonable settlement positions" during the litigation.
See Brief for Appellant at 38-40. The district court has discretion
to consider settlement negotiations in determining the reasonable-
ness of fees but it is not required to do so. See Sands v. Runyon, 28
F.3d 1323, 1334 (2d Cir. 1994) ("[T]he Postal Service made an offer
of judgment in December 1992 that would have given plaintiff a
back pay award equal to the amount calculated by his own expert,
and paying his attorney one-half of her requested fees. The district
court remarked that this offer was strikingly similar to the court's
eventual judgment in 1993. This is a factor a court may use in
considering the attorney's fee award."); Vocca v. Playboy Hotel of
Chicago, Inc., 686 F.2d 605, 608 (7th Cir. 1982) ("Counsel's refusal
to settle the case earlier for an amount only slightly less than the
amount ultimately agreed upon, accompanied by his statement that
Playboy could afford to pay more, provide sufficient support for the
district court's conclusion that he had unreasonably prolonged the
litigation."). The court's decision not to do so below was not an
abuse of its discretion.

 III.

Finally, the NFLPA contends the district court should have
awarded it costs insofar as it was the "prevailing party"
against Raymond and Taylor-Bland.10 As noted above, the
NFLPA filed a bill of costs on August 1, 1996, seeking
$11,112.35 for transcripts, copies of trial exhibits and copying
costs. JA 168. In a memorandum opinion dated November
26, 1996 the district court concluded the NFLPA was not
entitled to costs because "the court consider[ed] plaintiff
Thomas to be the prevailing party." JA 179. We agree with
the NFLPA that this ruling was an abuse of the district
court's discretion.

Rule 54(d)(1) of the Federal Rules of Civil Procedure
provides in relevant part: "Except when express provision
therefor is made either in a statute of the United States or in
these rules, costs other than attorneys' fees shall be allowed
as of course to the prevailing party unless the court otherwise
directs...." Fed. R. Civ. P. 54(d)(1). While Thomas may
have been the sole prevailing party on her own claims against
the NFLPA, it is uncontestable that the NFLPA was the sole
prevailing party on the claims asserted by Raymond and
Taylor-Bland. Thus, under the plain language of Rule
54(d)(1) the NFLPA is entitled to recover costs against them
"as a matter of course." See Byers v. Dallas Morning News,
209 F.3d 419, 425-26 (5th Cir. 2000) (successful Title VII
employer is entitled to costs under express language of Rule
54)d)(1)).11

For the preceding reasons we affirm the award of attor-
ney's fees to Thomas and remand to the district court to
award the NFLPA costs under Rule 54(d)(1) as the "prevail-
ing party" against Raymond and Taylor-Bland.

So ordered.
__________
10 As noted above, the NFLPA's bill of costs below sought costs
against Thomas as well. On appeal the NFLPA appears not to do
so. See Brief for Appellant at 41-42.

11 Thomas's counsel contend that the bill of costs filed August 1,
1996 was "premature" because it was submitted before a judgment
was filed. We are aware of no support for this contention, either in
Rule 54 or case law, and, accordingly, reject it summarily.