Opinion
Civil Action No. 1:96-CV-3129-ECS
February 8, 2001
ORDER
This matter is before the Court on Plaintiff's post-trial motion and brief seeking an award of attorneys' fees in a Title VII case under 42 U.S.C. § 2000e-5 (g)(2)(B). For the reasons set forth more fully herein, this Court concludes that the motion for attorneys' fees [Doc. No. 56] should be DENIED.
This matter is also before this Court on the dismissal of Defendant's prior appeal for lack of finality of the judgment. [Doc. No. 64]. In that regard, this Court finds that Plaintiff was not entitled to any declaratory or injunctive relief in this case because entitlement to such relief was not sought at trial or in the pretrial order and was not part of the case. Accordingly, to the extent that the prior judgment was not final, it should be amended to reflect that Plaintiff is entitled to no declaratory or injunctive relief.
I. Procedural Background
The above action was brought by Plaintiff under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. alleging sexual discrimination in employment. The case came on for a jury trial before the undersigned on January 19, 1999, and ended in a verdict rendered on January 22, 1999. The jury determined, pursuant to instructions under 42 U.S.C. § 2000e-5 (g)(2)(B), that sex was a motivating factor in the challenged employment action but that Defendant would have taken the same action even in the absence of the discriminatory motivation. No compensatory damages, therefore, were permitted to be awarded by the jury. 42 U.S.C. § 2000e-5 (g)(2)(B) (ii). Judgment was entered on the jury s verdict on February 10, 1999, in favor of Plaintiff but with no damages awarded. The judgment recited that any grant of declaratory relief, injunctive relief, attorneys' fees or costs would be reserved to the Court pursuant to 42 U.S.C. 2000e-5(g)(2)(B). [Doc. No. 53].
42 U.S.C. § 2000e-5 (g)(2)(B) provides as follows:
On a claim in which an individual proves a violation under section 2000e-2 (in) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court —
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
On March 10, 1999, twenty-nine days after the entry of judgment, Plaintiff filed her motion for an award of attorneys' fees, seeking attorneys' fees in the amount of $82,925.00. An affidavit of counsel was attached in support of the motion, with attorney time records. [Doc. No. 56]. Defendant responded to the motion, contending, among other things, that the motion was untimely and that the right to recover attorneys' fees had, accordingly, been waived. Defendant also attacked Plaintiff's entitlement to an award of fees on the merits, contending that Plaintiff was not entitled to an award of fees because she obtained no relief. Finally, Defendant challenged the substantiation and reasonableness of Plaintiff's fee claim.
On March 8, 1999, prior to the filing of Plaintiff's motion for attorneys' fees, Defendant filed a notice of appeal from the judgment entered on February 9, 1999. After the record was certified as ready, the Court of Appeals on September 14, 1999, dismissed the appeal for lack of jurisdiction, on the ground that the judgment was not final and appealable because it did not dispose of the Plaintiff's request for declaratory and injunctive relief. [Doc. No. 64].
II. Recoverability of Attorneys' Fees
A. Timeliness
Rule 54(d)(2) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
(2) Attorneys' Fees
(A) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
(B) Unless otherwise provided by statute or order of the court, the motion must be filed and served no later than fourteen days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made.
Attorneys' fees under Title VII are not recoverable as an element of damages to be proven at trial. Such fees are awarded by the Court upon a judgment being rendered in favor of the plaintiff that permits such an award to be made. See 42 U.S.C. § 2000e-5 (g)(2)(B); § 2000e-5 (k). Thus, Rule 54(d) controls the time of filing of a motion for attorneys' fees, unless "otherwise provided by statute or order of the court."
The Local Rules of this Court do not provide any other time period for filing such a motion for attorneys' fees. The Local Rules do not speak to when such a motion must be filed. See Local Rule 54.2. Thus, Rule 54 (d)(2) applies and requires that the motion be filed within fourteen days of entry of a final judgment, to be followed within thirty days thereafter by detailed specification and itemization, including affidavits and supporting documentation, as required under Local Rule 54.2. Thus, the local rules do not extend the fourteen days allowed for filing the motion, but contemplate that the motion and its supporting materials will all be filed within a total of forty-five days after final judgment.
Local Rule 54.2, relating to awards of attorneys' fees under Rule 54, does not extend the time for filing the motion required under Rule 54(d).
The failure to file a timely motion under Rule 54(d)(2), in the absence of a showing of excusable neglect, has consistently been held to be a waiver of the right to recover attorneys' fees. United Industries v. Simon-Hartley, Ltd., 91 F.3d 762, 766 (5th Cir. 1996) (failure to file within time provided under Rule 54(d) constitutes waiver); Romaquera v. Gegenheimer, 162 F.3d 893 (5th Cir. 1998) (same, but excused); Logue v. Dore, 103 F.3d 1040, 1047 (1st Cir. 1997) (same); Chaney v. New Orleans Public Facility Mgmt., Inc., 1998 W.L. 87617 (E.D. La. 1998) (same — 32 days after judgment); Johnson v. Dayco Products, Inc., 178 F.R.D. 571, 573 (D. Kan. 1998) (same); Pierce v. Philadelphia Housing Authority, 1995 W.L. 625629 (E.D. Pa. 1995) (same — 24 days after judgment); Sol Salins, Inc. v. W.M. Ercanbrack Co., Inc., 155 F.R.D. 4, 5 (D. D.C. 1994) (same — 30 days after judgment); 10 Wright, Miller Kane, Federal Practice and Procedure § 2680 at 493 (West 1998); cf.,Mindler v. Clayton County, 864 F. Supp. 1329 (N.D.Ga. 1994) (motion for costs and attorneys' fees under 42 U.S.C. § 1988 untimely).
In this case, Plaintiff argues that the request was timely, contending that Plaintiff had complied by making her request for fees at the trial. Plaintiff also points out that she submitted the detailed specification of the award within thirty days of the judgment. Plaintiff does not argue excusable neglect or any other basis for the failure to file the motion required under Rule 54(d)(2).
Although Rule 54 requires that a motion be filed within the fourteen days of judgment and that it contain certain specifics, and Plaintiff clearly failed to file within this time, the motion will not be considered untimely. In this case, as determined by the Court of Appeals, the judgment of February 10, 1999, was not a "final judgment." Furthermore, Plaintiff's motion and all supporting materials were filed within thirty days of the original judgment, even though it was not "final." Under these circumstances, this Court will consider the motion for a fee award on the merits.
B. Plaintiff's Entitlement to Fees
Plaintiff contends that, under 42 U.S.C. § 2000e-5 (g)(2)(B), she is entitled to recover her attorneys' fees, in this Court's discretion. Plaintiff argues that the Court should consider the facts of the case in exercising its discretion to award fees, even though no damages were awarded and no injunctive relief or declaratory relief was sought or obtained.
Defendant, on the other hand, urges that the Court deny any recovery of fees. Defendant argues that Plaintiff obtained no relief and would not have been a "prevailing party" under 42 U.S.C. § 2000e-5 (k), if fees were to be considered under that provision. Defendant urges that no other factors support a fee award in the case.
Both parties cite Canup v. Chipman-Union, Inc., 123 F.3d 1440 (11th Cir. 1997), in support of their respective positions. Indeed, Canup appears to be the controlling authority from the Eleventh Circuit on this issue. In Canup, the Eleventh Circuit Court of Appeals affirmed the district court's denial of the employee's request for attorneys' fees in a mixed motive case. In that case, a jury determined that the defendant unlawfully considered race in its decision to terminate the plaintiff, but that he would have been terminated even if race had not been considered. In Canup, as in this case, the return of the mixed motive verdict resulted by operation of law in no damages being awarded to the plaintiff.
In discussing the issues in mixed motive cases, the Canup court rejected plaintiff's position that § 2000e-5(g)(2)(B) establishes a presumption in favor of an award of fees. The court also found that, had the plaintiff been considered a prevailing party under § 2000e-5 (k), he would not have been entitled to recover his attorneys' fees. The court found that, without any award of damages or equitable relief, the plaintiff would not be entitled to fees under § 2000e-5(k) based only on a favorable jury verdict. "Thus, to the extent that § 2000e-5(k) (and other fee shifting statutes) provide guidance, Canup's failure to obtain any real relief deprives him of any right to recover attorneys' fees." Id. at 1443.
The court held that the starting point for considering fee requests in a mixed-motive case must be the degree of success obtained by the plaintiff. In that regard, the court also made it clear that it was important to consider the facts of the given case:
"As suggested above, an `innocent' employee whose conduct played no role in his termination (e.g., reduction in force cases) stands in a different situation than one who engages in misconduct. Furthermore, misconduct manifests itself with varying degrees, so the severity of the defendant's wrongdoing can be considered in determining whether the defendant should be obligated to pay the plaintiff's attorneys' fees. The district court is in the best position to evaluate the effect the facts of a given case should have on the fee request."Id. at 1444.
Considering the district court's order in light of these pronouncements, the circuit court in Canup found that the district court had properly evaluated the degree of the plaintiff's success, the egregiousness of the defendant's discrimination, and the lack of declaratory or injunctive relief, and that the district court did not abuse its discretion in declining to award any fees to the plaintiff.Id. at 1444-45.
The instant case is similar in many respects to Canup. The jury returned a verdict finding that gender was a factor in the union's decision not to recall Ms. Hipps as an officer of the union. The jury further found, however, that the union would have made the same decision even if Plaintiff's sex had not been a motivation. This resulted in a verdict for Ms. Hipps, but the jury was precluded from awarding any damages. [Doc. No. 52]. Plaintiff did not seek any declaratory or injunctive relief, and, as discussed further herein, no such relief was granted.
A decision on this motion, therefore, comes down to a consideration of the facts of the case. The evidence showed that Plaintiff was employed by Crown, Cork Seal Company from 1973 until she was laid off prior to the company closing its Atlanta facility in December, 1995. Employees at the company had originally been represented by the Retail, Wholesale, and Department Store Union ("RWDSU"). However, several years prior to 1995, the United Steelworkers of America ("USWA"), Local 9128, began representing the employees at the company, ousting the RWDSU in a very close vote. During the time that Plaintiff worked there, and before, the Local at Crown, Cork Seal Company suffered from divisions and conflicts. In response to some of these conflicts, the USWA District 35, which had oversight responsibility for Local 9128, threatened to place the Local under "administratorship" several times. In an administratorship, the Local's officers are removed and the International Union takes over governance of the Local.
In 1991, Plaintiff was elected recording secretary of the Local. During this time, Victoria Key was the USWA staff representative servicing the Local. In 1994, Plaintiff ran for president of the Local and, on April 14, 1994, was elected. By this time, Kelly Smith ("Smith") was the staff representative for the Local.
Shortly after Plaintiff's election, however, Local financial secretary David Johnson filed a protest to Plaintiff's election victory. Plaintiff wanted to be installed in office pending the outcome of the protest; however, Smith told Plaintiff that she could not be placed in the position until the issue was decided. The election protest was confirmed by the Local, but on July 14, 1994, the International Executive Board Appeals Panel reversed the Local and upheld Plaintiff's election. Thereafter, Plaintiff took office on July 26, 1994.
Also shortly after Plaintiff was installed as president, she filed a grievance requesting that she be given a shift preference and be allowed to work on the day shift, when her regular shift was at night. The written terms of the bargaining agreement itself did not apparently give Plaintiff the right to a shift preference. However, Plaintiff believed that every male president had been allowed to work on the day shift and that, pursuant to a letter preserving the past practices of the union, she was entitled to a preference as well. The letter provided that "[t]he local parties may also continue existing arrangements governing preferential seniority for shift selection pending further legal developments."
Victoria Key, the staff representative during the terms of the earlier presidents, testified that no prior Local president had been given a shift preference to work the day shift. The USWA was of the opinion that if Plaintiff had obtained a shift preference, that action would have constituted an unfair labor practice under the union contract. Although the officers of the Local voted that the president should be on the day shift, over thirty employees signed a letter petition stating that they did not want Plaintiff to have preference. In September, 1994, Plaintiff received a written communication advising her that Smith and Joe Kiker of the USWA District Office opposed Plaintiff being given a shift preference.
On October 23, 1994, Plaintiff spoke with Ken Thomas, chair of the grievance committee, about changing the date of a grievance hearing, and when Thomas refused to make the change, Plaintiff removed him from his position. Plaintiff believed that she could remove Thomas from the position because he had not been elected to the position but was serving as the acting chairman. However, Kelly Smith and other USWA officials did not believe Plaintiff had the authority to remove the committee chairman.
In 1995, Smith told Plaintiff that Larry Carroll, instead of Plaintiff, was to attend a meeting in Pittsburgh regarding the master agreement governing the Union. Plaintiff pointed out to Smith that only Local presidents would be allowed to vote during the meeting. According to Plaintiff, Smith told Plaintiff that the letter did not matter and Carroll would be designated to go as the Local's representative. According to the testimony of David Johnson, the Local voted to send Carroll and not to pay Hipps' expenses. Plaintiff then decided to go to the meeting anyway. Shortly after Plaintiff arrived in Pittsburgh for the meeting, Carroll showed up as well. Following the meeting, Smith refused to reimburse Plaintiff for her expenses but did reimburse Carroll and Larry Anderson. Id. at ¶¶ 71-72.
During her tenure as president, Plaintiff once scheduled a labor/management meeting for the same day representative Kelly Smith had scheduled a "Step 3" grievance meeting, and on another occasion Plaintiff canceled a pre-"Step 3" meeting which Smith had scheduled, without first informing Smith of the cancellation. These actions did not sit well with Smith.
There was in-fighting within the Local between Plaintiff and Local Financial Secretary David Johnson. Johnson and Plaintiff had an ongoing dispute over who was to retain the key to the Local's P.O. Box. Plaintiff also from time to time contacted USWA Headquarters in Pittsburgh directly rather than always taking her issues or questions first to Smith and the District Office. Eventually, David Johnson requested that the USWA place the Local under administratorship.
Smith also requested that the USWA place the Local under administratorship. Smith made his request to District Director Joe Kiker, but, thereafter, Smith had no involvement in whether the Local was placed on administratorship. Kiker held a meeting with the Local officers to discuss the possibility of the Local being placed in an administratorship. After this meeting, Director Kiker requested that USWA President George Becker place the Local under administratorship.
In response to Kiker's request, President Becker placed the Local under administratorship, relieved the Local officers of their duties, and appointed a commission to conduct a hearing regarding the Local. After Becker placed the Local under administratorship, he assigned Smith to administer the Local. As administrator, Smith had the authority to designate new officers for the Local or to choose not to designate any Local officers at all.
Smith decided to appoint officers to the Local. Smith appointed Larry Anderson, an employee from another USWA-represented plant, as vice president. Smith decided not to recall Plaintiff as president of the Local, but he did name Larry Carroll, the former Local vice president as president. Smith also retained David Johnson as financial secretary and Elbert Hunter as treasurer. Finally, Smith appointed Luella Avery as Secretary. Smith also did not recall Mike Thomas, who had previously been the recording secretary.
Smith testified that he made the decision not to recall Plaintiff because he perceived her as trying to undermine his authority and exacerbating the divisions in the union. In support of his decision not to recall her, he pointed to her cancelling one of his meetings, scheduling meetings when he had already scheduled one, contacting the International in Pittsburgh without his knowledge, and continuing to agitate for day shift preference.
Plaintiff was laid off from the company from May, 1995, until she was recalled to employment on August 7, 1995. Nonetheless, pursuant to the USWA constitution, the decision to place Local 9128 under administratorship proceeded automatically to the International Executive Board Appeal Panel ("Appeal Panel") which reviews decisions made by commissions. After a review of the case including Plaintiff's written statement, the panel upheld the decision of the Commission to place the Local under administratorship and to remove Plaintiff and the other officers from their positions.
On October 3, 1995, the company sent the USWA a letter advising that the Atlanta facility would be shut down on December 3, 1995. As a result of the facility closing, Plaintiff was permanently laid off on October 9, 1995. The Local was merged into United Steelworkers of America, Locals 2401 and 3944 on or about December, 15, 1995, due to the closure of the Atlanta facility. As a result of this merger, Local 9218 was canceled and the individuals who had been named as Local officers after the imposition of the administratorship lost their status as officers.
At trial, there was testimony from Michael Thomas that, after Plaintiff's election to the position of president, Kelly Smith said on one occasion that "I'm not going to have Joyce in the office — I'm not going to fool with that damn woman." Thomas said he also heard Smith state that "I will not put Joyce on day shift." After Plaintiff had canceled a grievance meeting, Thomas heard Smith state in reference to Plaintiff "that damn woman ain't calling my meeting off — that's my damn meeting."
Glennell Albright, another employee at Crown, Cork Seal, testified that she heard Smith say to Plaintiff "just because you're white and a woman, you're not going to get your way." On another occasion Albright heard Smith, while talking to another union member, refer to Plaintiff as a "white bitch" and further state "she thinks she is going to get away with it, but she is not." Smith denied making these statements.
Barbara Brown, an employee of Crown, Cork Seal, testified that, following the initial decision to place the Local under administratorship, she heard Smith say "I put Luella Avery in the office so there'll be no sexual discrimination." Smith also denied making this statement.
Analyzing the facts, it appears that there was "wrongdoing" on both sides. Ms. Hipps was not an innocent employee in the sense that term is used in Canup. The evidence demonstrated that her actions in seeking to perform her duty as president of the union brought her into conflict with other factions of the union, as well as union management. The Local was already divided and fractious, "a troubled Local," as Victoria Key put it. Plaintiff's demand to be placed on the day shift, for example, caused a further rift among the employees. The evidence showed that the roots of the divisiveness in this particular local union ran deep. The Local was divided into camps that could not get along, and Ms. Hipps' actions, technically justified or not, were confrontational rather than conciliatory. Her actions could be construed as divisive and as undermining Smith's authority.
As for Smith, it is clear that he did not get along with Plaintiff and that they found each other in opposition on repeated occasions. He felt she undermined him and went over his head unjustifiably. Plaintiff was headstrong and assertive, and Smith clearly did not like her. That Smith's dislike was rooted in Plaintiff's gender, however, is not as clear.
Reviewing and considering all of this evidence, this Court concludes that the same result should be reached as was reached in Canup. There was division and strife in the union preexisting Plaintiff's election, and this division and fractiousness was exacerbated while she was in office. Her demand to be on day shift raised the levels of tension and fractiousness in the Local, but she persisted with it. She took steps which the union viewed to be improper with respect to the grievance committee. Furthermore, the union apparently rightly concluded that the Local was not capable of being run by the slate of officers headed by Ms. Hipps, and that Hipps and Smith could not work together. She was not, in other words, "innocent" in the matters that led to her removal from office and the failure to recall her.
These observations lead this Court, ultimately, to make an evaluation of the egregiousness of any discrimination shown. The trial of the case reflected the sharp divisions in the union. All the officers were removed, but Ms. Hipps (and Mr. Thomas) were not returned to office. Smith's decision that she should not be recalled is not necessarily indicative of sex discrimination, however. There were other nondiscriminatory issues at play. Neither the union's conduct, nor Smith's decision, in this Court's view, was so egregious that the failure to award attorneys' fees would constitute an injustice.
Accordingly, this Court concludes that, exercising its discretion, no attorneys' fees should be awarded in favor of Plaintiff.
III. Finality of Judgment
Judgment was entered in this case on February 10, 1999, in favor of the Plaintiff but with no damages awarded. The judgment also provided that "[a]ny grant of declaratory relief, injunctive relief, attorneys' fees and costs is reserved to the Court pursuant to 42 U.S.C. § 2000e-5 (g)(2)(B)." [Doc. No. 53] Defendant filed its notice of appeal of this judgment on March 8, 1999, before Plaintiff filed the motion for attorneys' fees, which was filed, as discussed above, on March 10, 1999. On April 30, 1999, the appeal record was certified as ready. By order of September 13, 1999, the Court of Appeals dismissed the appeal for lack of finality because it did not dispose of Plaintiff's request for declaratory and injunctive relief.
Plaintiff, however, did not assert any claim for declaratory or injunctive relief at trial, or by post-trial motion, nor was such a claim included in the pre-trial order filed in the case See [Doc. No. 41]. The pretrial order sought only a money award. Neither were any such claims asserted in plaintiff's proposed findings and conclusions submitted to the Court at trial. See [Doc. No. 47]. Therefore, despite the reservation in the judgment to the court of any grant of declaratory or injunctive relief, no such relief was sought or available to the Plaintiff in the case. Cf., Walker v. Anderson Electrical Connectors, 944 F.2d 841, 844 (11th Cir. 1991) (denial of declaratory and injunctive relief affirmed where not included in pretrial order).
Accordingly, this Court directs that the judgment in this case be amended to reflect that no injunctive relief or declaratory relief was sought or affordable to Plaintiff in this case, and that any such relief is therefore DENIED.
SO ORDERED.
EXHIBIT A FORM OF VERDICT
The Jury Must Unanimously Agree on the Answers to All of the Questions.
1. Has plaintiff, Miriam J. Hipps, proved that plaintiffs gender was, more likely than not, a motivating factor in the decision of defendant, United Steel Workers of America, not to recall the plaintiff to office?
YES ___ No ___
If your answer to Question # 1 is "YES", then go to Question # 2. If your answer to Question # 1 is "NO", the Foreperson should sign the Form of Verdict, and you should not answer any more questions.
2. Has defendant, United Steel Workers of America, proved, more likely than not, that the defendant would have made the same decision concerning plaintiff even in the absence of the unlawful motive?
YES ___ No ___
If your answer to Question # 2 is "NO", then go to Question # 3. If your answer to Question # 2 is "YES", the Foreperson should sign the Form of Verdict, and you should not answer any more questions.
3. Under the law as given to you in the instructions, state the amount of compensatory damages plaintiff should be awarded from defendant.
AMOUNT: $ ___
Go to Question # 4.
4. Under the law as given to you in the instructions, state the amount, if any, of punitive damages that the plaintiff should be awarded from defendant. If you find that punitive damages are not appropriate, check the box next to "A" and do not answer "B".
A. ___ Punitive damages should not be awarded.
B. $ ___ of punitive damages should be awarded.
The foreperson should sign and date the Form of Verdict.
1-22-99 __________ _______ FOREPERSON DATE