IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-2679 _____________________
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellee,
RHONDA L. GOERLITZ,
Intervenor-Plaintiff Appellee-Cross Appellant,
versus
CLEAR LAKE DODGE, ET AL.,
Defendants,
GULF COAST DODGE, INC., d/b/a CLEAR LAKE DODGE,
Defendant-Appellant, Cross-Appellee.
***************************************************************** _____________________
No. 92-2859 _____________________
Plaintiff,
WALTER R. GRIMES,
Appellant,
versus RHONDA L. GOERLITZ,
Intervenor-Plaintiff Appellee,
Defendants. _________________________________________________________________
Appeals from the United States District Court for the Southern District of Texas _________________________________________________________________ (July 25, 1995)
OPINION ON RECONSIDERATION
Before JOHNSON, GARWOOD, and JOLLY, Circuit Judges.
PER CURIAM:
This panel's original opinion in this case was issued June 24,
1994, and was reported at 24 F.3d 265. Goerlitz filed a petition
for rehearing, and the EEOC filed a suggestion for rehearing en
banc. In response to the petition for rehearing, we withdraw our
earlier opinion and substitute the following opinion.
The Equal Employment Opportunity Commission, on behalf of
Rhonda Goerlitz, brought this sex discrimination action--in which
Goerlitz later intervened personally to raise state law issues--
against Gulf Coast Dodge, Inc., claiming that Gulf Coast fired
Goerlitz because of her pregnancy. The jury returned a defendant's
verdict in favor of Gulf Coast on all state law issues. The jury
also decided in favor of Goerlitz on the Title VII claims, but its
ruling in this respect was advisory only. The district judge
-2- disregarded the advisory verdict, however, and ruled in favor of
Goerlitz on her Title VII claims. We affirm both the jury and the
judge.
We affirm the district court's decision to award attorneys'
fees, but hold that the district court abused its discretion in
determining the amount of fees to be awarded. Accordingly, we
remand the case to the district court for reconsideration of the
fees in the light of this opinion. Finally, we affirm the district
court's imposition of sanctions on Gulf Coast's attorney in
connection with post-trial matters.1
I
Gulf Coast hired Rhonda Goerlitz to be a customer service
representative ("CSR"). Goerlitz was hired in probationary status
for the first ninety days at $1400 a month with a raise after that
to $1500 a month if given permanent status. When she began work on
July 15, 1990, Goerlitz was about one month into a pregnancy.
She worked with automobile purchasers to assure that the
vehicle was clean when delivered, to demonstrate how to operate
various features on the automobile like the cruise control and the
radio, and to show the location of the spare tire. In the case of
a van purchase, her job included demonstrating how to fold down the
sofa bed.
1 This opinion is identical to our earlier opinion except with respect to the introduction and sections III.B and IV. Further, a dissent has been appended, which dissents, however, only from part III.B.
-3- After about one and a half months on the job, and several
weeks after she revealed her pregnancy, Goerlitz was taken out of
her job as a CSR and was assigned temporarily as a dispatcher to
fill in for vacationing employees. Goerlitz's supervisor, Don
McMillan ("McMillan"), made this change in Goerlitz's assignment
after he had observed her demonstrating vehicles. McMillan stated
that Goerlitz was "too big" to enter vehicles properly. When
McMillan transferred Goerlitz from the CSR position, he told her
that when she was no longer needed as a dispatcher, he would look
into finding her a clerical position.
After a few weeks as a dispatcher, on September 10, 1990, when
McMillan was on vacation, Goerlitz slipped and fell on the service
driveway. She was taken by ambulance to an emergency room, where
it was determined that she had sprained her ankle. She returned to
work the same day, but Harry McGinty, who was filling in for
McMillan, instructed Goerlitz to stay home for the rest of the week
and to contact McMillan upon his return the next Monday.
On September 17, Goerlitz called McMillan to ascertain her
employment status. McMillan told her that he did not need anyone
to work in dispatch that day. In response to Goerlitz's inquiry
about her status, McMillan replied that it had not changed since
their conversation in August when he had transferred her from her
position as a CSR. According to McMillan, he told Goerlitz that he
thought they could put together a job for her doing filing and
possibly keypunch. Goerlitz asked several times during the
-4- conversation if she had been fired; McMillan answered that she had
not.
Goerlitz went to see McMillan the next day, on September 18,
and they once again discussed the file clerk job. On the day
before the meeting occurred, however, McMillan had prepared a
Personnel Action Report and had dated it effective September 12,
1990. On the form, the box labeled "TERMINATION" was checked and
the following comment was written: "unable to perform her duties
properly due to pregnancy." McMillan testified at trial that this
report was not a termination notice, but merely a transfer slip
indicating to the company's payroll clerk which department was
responsible for the employee's pay.
II
The EEOC originally brought this action against Gulf Coast,
alleging that Goerlitz was terminated from her position at Gulf
Coast because of her sex (pregnancy). The suit was commenced on
April 1, 1991, pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000 et seq.
Some six months later, on October 29, 1991, Goerlitz
intervened. She alleged, in addition to the Title VII action,
causes of action under the Texas Human Rights Act, TEX. REV. CIV.
STAT. ANN. art. 5221k (Vernon 1991); the Texas Workers Compensation
Act, TEX. REV. CIV. STAT. ANN. art. 8307c (Vernon Supp. 1991);
intentional infliction of emotional distress; and negligent
infliction of emotional distress. Goerlitz demanded a jury.
-5- The district court granted Goerlitz a binding jury for her
state law claims, but the court determined that it would submit
interrogatories under Title VII to the jury only as an advisory
jury, under the Civil Rights Acts of 1964. The trial began on
January 6, 1992. On January 15, the jury returned its answers to
the interrogatories in favor of the defendants on all claims.
On February 18, 1992, the district court made findings of
facts and conclusions of law on Goerlitz's claims under Title VII.2
It concluded that the "EEOC and Goerlitz established through direct
testimony and documentary evidence that Goerlitz's pregnancy was a
substantial factor in Gulf Coast's decision to reassign her." The
court held that "Gulf Coast had failed to prove by a preponderance
of the evidence that the decision to reassign Goerlitz and then
discharge her would have been made absent her pregnancy," or that
"Goerlitz's pregnancy interfered with her ability to perform either
her job as [CSR] or her job in Dispatch."
Accordingly, the district court found that Goerlitz was
entitled to back pay, prejudgment interest thereon, and attorneys'
fees. The court, however, accepted the jury's finding against
Goerlitz on her state law claims, and denied Goerlitz's motions for
judgment notwithstanding the verdict and for a new trial on her
state law claims.
2 The court noted that "the parties agreed that the claim for violations of Title VII presents questions for the Court rather than for the jury." The district court characterized the jury's verdict as "advisory fact findings on the non-jury fact questions."
-6- On August 10, 1992, Goerlitz had Gulf Coast served with a writ
of execution. On the same day, Gulf Coast filed a motion to
approve the supersedeas bond. Goerlitz opposed the motion to
approve the supersedeas bond and sought sanctions for submitting a
defective bond. On September 24, the trial court held a hearing on
both motions, and the court ordered sanctions against Gulf Coast's
attorney, Grimes, on October 19.
Gulf Coast filed its notice of appeal on August 25, and on
October 30, Grimes filed a notice of appeal from the court's order
of sanctions.
III
On appeal, Gulf Coast argues that the district court erred by
entering a judgment in favor of Goerlitz on her Title VII claim
when that judgment was contrary to the jury verdict in favor of the
defendant on identical state law claims. Goerlitz, on the other
hand, asserts that, according to the agreement of the parties, the
jury verdict was not binding on the district court and that any
argument to the contrary has been waived. On cross-appeal,
Goerlitz argues further that the jury verdict was unsupported by
the evidence, and that the district court should have granted her
motions for judgment as a matter of law, or alternatively, for a
new trial.
In addition to these "merits" issues, Gulf Coast also appeals
two ancillary rulings. Gulf Coast argues that the trial court
abused its discretion, first, in awarding attorneys' fees to
-7- Goerlitz's attorney, and, second, by imposing sanctions on Gulf
Coast's attorney, Walter Grimes. We will address each of these
issues in turn.
A
(1)
Gulf Coast's first claim is that the district court erred when
it found in favor of Goerlitz on her Title VII claim. It argues
that the jury verdict on the state law claims, which decided all
relevant issues against Goerlitz, was binding on the district
court. In support, Gulf Coast cites the Eleventh Circuit's
decision in Lincoln v. Board of Regents, 697 F.2d 928 (11th Cir.),
cert. denied, 464 U.S. 826 (1983), which stated:
An action for reinstatement and backpay under Title VII is by nature equitable and entails no rights under the seventh amendment. An action for damages under § 1981, however, is by nature legal and must be tried by a jury on demand. When legal and equitable actions are tried together, the right to a jury in the legal action encompasses the issues common to both. When a party has the right to a jury trial on an issue involved in a legal claim, the judge is of course bound by the jury's determination of that issue as it affects his disposition of an accompanying equitable claim.
Id. at 934 (Wisdom, J.) (emphasis added) (citations omitted).
Furthermore, Gulf Coast argues that the Fifth Circuit has adopted
this holding in Ward v. Texas Employment Comm'r, 823 F.2d 907 (5th
Cir. 1987).
Although it is not entirely clear whether the Lincoln holding
should apply in this circuit beyond the facts of Ward, we do not
-8- reach that question today. Instead, we hold that Gulf Coast waived
its right to a binding jury verdict.
The conduct in this case occurred before, and the trial took
place after, the effective date of the Civil Rights Act of 1991,
which enacted the right to a jury trial on Title VII claims.
Throughout the district court proceedings, Gulf Coast argued that
the Civil Rights Act of 1991, and its right to a jury trial, should
not be retroactively applied.3 The district court agreed with Gulf
Coast, and thus ordered that the selected jury would be only
advisory as to the equitable Title VII claim. Gulf Coast fully
agreed with this decision and repeatedly and consistently asserted
the view that the district court was the fact finder in the Title
VII case. Gulf Coast never argued before the district court that
Ward and Lincoln applied to make the jury verdict binding. In
fact, even in its post trial motion for judgment under Rule 52(a)
Gulf Coast characterized the verdict as "only advisory to the
Court, on the . . . Title VII claim."
Because Gulf Coast argued for, and fully supported the court's
ruling that the jury would be only advisory on the Title VII case,
Gulf Coast waived any right that it might otherwise have had. See
Floyd v. Kellogg Sales Co., 841 F.2d 226, 229-30 (8th Cir.) cert.
denied, 488 U.S. 970 (1988); see also Rideau v. Parkem Industrial
3 This position is consistent with the Supreme Court's recent decision in Landgraf v. USI Film Prods., ___ U.S. ___, 114 S.Ct. 1483, which affirmed our decision in Landgraf, 968 F.2d. 427 (5th Cir. 1992), cert. granted, in part, 113 S.Ct. 1250 (1993).
-9- Services, Inc., 917 F.2d 892, 896 (5th Cir. 1990) (stating that a
party can waive a Seventh Amendment right to a jury trial). See
Hamman v. Southwestern Gas Pipeline, Inc., 821 F.2d 299, 308 (5th
Cir. 1987).4 In sum, it is clear that under these circumstances
the district court was not bound to apply the findings of the jury
in determining the Title VII claims. See Verdin v. C & B Boat Co.,
860 F.2d 150, 154 (5th Cir. 1988).
(2)
Our task thus becomes to review the merits of the district
court's Title VII findings. A district court's judgment cannot
stand where its findings are clearly erroneous. FED. R. CIV. P. 52.
"[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." Cupit v. McClanahan Contractors, 1 F.3d 346, 348 (5th
Cir. 1993) (citing United States v. Gypsum, 333 U.S. 364 (1948)).
We are not permitted to re-weigh the evidence on appeal simply
because we disagree with the choices made by the district court.
Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504,
1511 (1985). But we will overturn the district court where there
is only one permissible view of the weight of the evidence. Amadeo
4 Furthermore, this circuit has a long-standing rule that it will not consider for the first time on appeal an argument not made to the district court. Earvin v. Lynaugh, 860 F.2d 623, 627-28 (5th Cir. 1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1558 (1989).
-10- v. Zant, 486 U.S. 214, 225-26, 108 S.Ct. 1771, 1778 (1988); Chaney
v. City of Galveston, 368 F.2d 774, 776 (5th Cir. 1978).
Furthermore, this same standard applies even when an advisory jury
has suggested contrary findings. Fed. R. Civ. P. 52(a); Verdin v.
C & B Boat Co., 860 F.2d 150, 154 (5th Cir 1988).
In the present case, the evidence adequately supports a
finding that Gulf Coast transferred Goerlitz because of her
pregnancy and, ultimately, discharged her for that same,
impermissible reason. The evidence, for example, reveals the
undisputed fact that McMillan completed and signed a Personnel
Action Report regarding Goerlitz on which he checked the option
labelled "TERMINATION" and noted "UNABLE TO PERFORM DUTIES PROPERLY
DUE TO PREGNANCY." McMillan also authorized that Goerlitz be
given severance pay when he filled out the Personnel Action Report.
Furthermore, several of the plaintiff's exhibits demonstrate that
when Gulf Coast employees are transferred, "TERMINATION" is not
checked on the Personnel Actions Report, and the details of the
transfer are noted.
This evidence fully supports the finding that Goerlitz was
fired from her job; it adequately refutes Gulf Coast's contention
that she was transferred and that she quit. In short, the evidence
will support the finding that the reason for Goerlitz's termination
was her pregnancy. Although other evidence may support a contrary
-11- finding,5 we hold that the district court committed no error in
entering judgment against Gulf Coast on the Title VII case.6
5 Specifically, there was a great deal of testimony concerning the manner in which Goerlitz carried out her duties as a customer service representative. First, there was testimony that Goerlitz was too big to properly enter and exit the vehicles that she worked in. At the same time, however, the evidence showed that Goerlitz had gained only nine pounds from her pregnancy when she worked at Gulf Coast. Further, there was evidence that Goerlitz wore clothing that was not appropriate for her job, and that on at least one occasion her clothing "rode up" on her to the point that a customer was embarrassed--thus, reflecting poorly on Gulf Coast. Finally, with respect to Goerlitz's job performance, McMillan testified that he received several complaints about Goerlitz, that she had displeasing mood swings, that on at least one occasion, she took several hours for lunch without the permission of her supervisor, and on yet another occasion, Goerlitz was unavailable and nonresponsive to McMillan's page. From this testimony, a jury could reasonably conclude that Goerlitz was terminated because of her job performance, and not because of her pregnancy. In addition, the testimony presented would even support a reasonable jury in concluding that McMillan made every good faith effort possible to keep Goerlitz at the dealership even though she was not performing her job satisfactorily. The testimony showed that McMillan transferred Goerlitz to dispatch, believing that she would perform better in that capacity because she had prior experience in dispatch. Further, according to testimony, the transfer was made, in part, to satisfy Goerlitz's own scheduling request, and McMillan testified that Goerlitz seemed eager to try it. After Goerlitz fell in the driveway of the dealership, however, and then was absent for a week, the testimony shows that she called McMillan, repeatedly asked if she had been fired, and ignored McMillan's assurances that she had not been fired. A reasonable jury could have believed that Goerlitz's accosting attitude in this final interchange caused Goerlitz's termination-- in spite of McMillan's good faith efforts to continue her employment. 6 Goerlitz also argues that the district court erred in denying her motions for a judgment notwithstanding the verdict and for a new trial on her state law claims. A motion for JNOV should be granted where reasonable minds could reach only one conclusion on the evidence as presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511 (1986); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). In the present case, however, we find that the evidence presented was such
-12- Furthermore, we hold that the court committed no error in
calculating the amount of its damage award.7
B
In addition to its damage award, the district judge ordered
Gulf Coast to pay Goerlitz's attorneys' fees in the amount of one
hundred thirty-two thousand, nine hundred twenty-six dollars and
twenty-one cents ($132,926.25). The Civil Rights Act of 1964
provides that a "prevailing party" in a suit brought under Title
that reasonable minds could disagree on its meaning. See supra note 4. Accordingly, we hold that the district court committed no error by entering a plaintiff's judgment on the Title VII case and, at the same time, letting stand the defendants' jury verdict on the state law claims. Cf. Lytle v. Household Manufacturing, Inc., 494 U.S. 545, 110 S.Ct. 1331, 1338 (1990) (explaining that the judge's role in ruling on a motion for JNOV is quite different from his role as a factfinder). A district court, nonetheless, can grant a new trial where the verdict returned is against the great weight of the evidence. This decision, however, is committed to the discretion of the trial judge, and where the judge has denied a new trial motion, our review is very narrow. Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 987 (5th Cir. 1989). Given that the evidence presented would support a verdict in favor of either party, we find that the district court committed no reversible error in denying Goerlitz's new trial motion. Finally, we note that our decision to uphold the district court's Title VII judgment makes moot Goerlitz's JNOV and new trial arguments to the extent that she sought to recover for her economic damages through her state law claims, because the court's Title VII judgment provides Goerlitz a full recovery of her economic damages. 7 Gulf Coast contends that it is entitled to a reduction of its back pay liability because it made an "unconditional offer" to reinstate Goerlitz to her prior position in November of 1990. We agree with the district court that this "offer" did not satisfy the requirements of Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S.Ct. 3057, 3063 (1982).
-13- VII is entitled to recover her attorneys' fees and costs. 42
U.S.C. § 2000e-5(k). The award of attorneys' fees, nevertheless,
rests within the discretion of the district court.8 We will not
reverse an award of attorneys' fees unless the trial court abused
its discretion or based its award on clearly erroneous findings of
fact. Johnston v. Harris County Flood Control Dist., 869 F.2d 1565
(5th Cir. 1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 718, 107
L.Ed.2d 738 (1990).
The action before us was originally brought by the EEOC. It
asserted Goerlitz's rights only under Title VII of the Civil Rights
Act of 1964. All other claims asserted in this case were not part
of the original suit. On October 29, 1991, more than six months
after the original suit was filed, Goerlitz, through her private
attorney, intervened, and added state law claims. As to each and
every claim added to this case by Goerlitz, the jury found in favor
of Gulf Coast Dodge. In short, the EEOC brought each and every
prevailing claim; Goerlitz brought each and every rejected claim.
We recognize, however, that after Goerlitz intervened in this
case, her private lawyer represented her not only on her losing
state law claims but also on claims under Title VII. Goerlitz
obtained a favorable judgment on her Title VII claims; in this
sense, she qualifies as a "prevailing plaintiff" under our
8 42 U.S.C. § 706(k).
-14- "generous formulation" of the term.9 Attorney fees, however, are
not necessarily automatic for prevailing parties, because "[i]n
some circumstances, even a plaintiff who formally 'prevails' . . .
should receive no attorney's fees at all." Farrar v. Hobby,
U.S. , 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992).
As we have earlier noted, the plaintiff was not the prevailing
party with respect to her state law claims. The plaintiff,
however, clearly was the prevailing party with respect to her Title
VII claims. As we have also noted, however, the plaintiff was
competently represented by the EEOC who initiated and prosecuted
all the Title VII claims with respect to which the plaintiff
prevailed. Notwithstanding the redundancy of Goerlitz's private
attorney, as far as the Title VII claims are concerned, she
nevertheless participated in the related discovery and in the
presentation of the Title VII claims, and, obviously, made some
contribution to the Title VII victory Goerlitz won before the
district court. Our consideration of the district court's award of
$132,926.25 in attorneys' fees in comparison to that contribution,
however, convinces us that although the district court did not
9 "A typical formulation is that 'plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).
-15- abuse its discretion in awarding some attorneys' fees, its award
must on remand be trimmed back significantly.
When assessing the appropriateness of attorneys' fees, we must
recognize the well-settled principle that attorneys' fees must be
awarded only for those lawyer hours that are reasonably necessary
to adequately prosecute the case. City of Riverside v. Rivera, 477
U.S. 561, 568, 106 S.Ct. 2686, 2691, 91 L.Ed.2d 466; Hensley, 461
U.S. at 434, 103 S.Ct. at 1939. Attorneys' fees must not be
awarded for attorney hours that are "excessive, redundant, or
otherwise unnecessary." Hensley, 461 U.S. at 434, 103 S.Ct. at
1939-40. Title VII, furthermore, does not allow for the award of
any attorneys' fees requested, but only reasonable fees. Curtis v.
Bill Hanna Ford, Inc., 822 F.2d 549, 551 (5th Cir. 1987). Another
important consideration is that once civil rights litigation
materially alters the legal relationship between the parties, "the
degree of the plaintiff's overall success goes to the
reasonableness of a fee award." Farrar, 113 S.Ct. at 574. There
is no windfall of attorneys' fees when the district court properly
considers the relationship between the extent of the success and
the amount of the fee award. See id. at 575. Similarly, "the
district court should focus on the significance of the overall
relief obtained by the plaintiff in relation to the hours
reasonably expended in the litigation." Rivera, 106 S.Ct. at 2691.
Here, we are faced with a somewhat unusual case. As discussed
above, in April 1991 the EEOC instituted this suit on behalf of the
-16- plaintiff. About two weeks later, Goerlitz's private attorneys
instituted a suit in state court based solely on state law claims.
After the state court abated the suit in response to the
defendant's motion, Goerlitz moved to intervene in this suit in
August 1991. The district court granted the motion to intervene in
October, allowing the plaintiff to pursue her numerous state law
claims, all arising from the same set of incidents. This
necessitated a week-long jury trial in January 1992, which not only
proved fruitless with respect to her state law claims, but extended
the trial far in excess of the time it otherwise would have taken
if the proceeding had been limited to the Title VII claims.
Standing alone, the simplicity of the EEOC case did not justify the
service of additional attorneys. The Title VII claims asserted in
the EEOC's suit were at all times identical to Goerlitz's Title VII
claims, and the EEOC's suit never embraced any other claims.
Moreover, because there is no suggestion of possible conflict
between the interests of the EEOC and those of the plaintiff, nor
any suggestion that the EEOC was lax in pursuing the Title VII
claims, there is little justification on any basis for additional
attorneys. In short, when the contribution of Goerlitz's counsel
is considered solely in the context of the Title VII claim, her
services were largely unnecessary. The district court, when
reviewing the amount of justifiable attorney fees, seems not to
have taken this very significant factor into consideration. It is
true, of course, that the plaintiff, who originally claimed 1075
-17- attorney hours on the entire case, deducted about 187 hours on
account of the failure of all her jury claims. This deduction left
868 hours of compensable time, which we view as quite unreasonable-
-almost one half a year when 2,000 billable hours a year is
considered average--in this simple Title VII case involving a
single discharge in a case that ultimately should have taken no
more than three days to try. In this respect, we note that 390
hours are claimed in the month of January 1992, the time of the
trial, which were in large part fruitless hours for Goerlitz's
private counsel. On remand, therefore, it will be for the district
court to determine the extent to which Goerlitz's private counsel
was not redundant or unnecessary in the pretrial or trial of this
relatively simple Title VII case.
Additionally, the court erroneously concluded that the
plaintiffs should be granted an enhancement to the hourly rate. As
justification for the enhancement, the district court stated that
the case "required highly skilled counsel" and that Goerlitz needed
these attorneys to conduct a "complex factual investigation,
including a large number of documents and depositions to rebut Gulf
Coast's defenses of inadequate performance and poor attitude." As
further justification for the enhanced award, the court noted that
Goerlitz had obtained "positive results on her Title VII claim, and
that in achieving this result, she had encountered `the
uncooperative behavior of defense counsel throughout pretrial
matters and trial preparation.'" These factors do not impress us
-18- as uncommon encounters of trial counsel, which would justify more
than usual hourly compensation; the fact that the case was complex,
involved a large number of documents, or recalcitrant counsel would
be compensated by the additional hours that these factors would
have necessitated.
We therefore remand the case to the district court for
reconsideration of attorneys' fees. The district court must keep
foremost in its mind that Goerlitz succeeded only on her Title VII
claims with respect to which the EEOC was fully adequate to
prosecute. The district court must also remember that Goerlitz
lost on all of the claims brought by her private counsel, and that
the fact that she happened to win before the district judge on her
Title VII claims does not provide a windfall of compensation for
claims prosecuted, but lost.
C
Finally, we turn to address Gulf Coast's argument that the
district court erred by imposing sanctions on its attorney, Walter
Grimes. The appropriate standard of review in assessing the
district court's award of Rule 11 sanctions is the abuse of
discretion standard. Thomas v. Capital Sec. Servs., Inc., 836 F.2d
866, 872 (5th Cir. 1988). The district court imposed these
sanctions because Grimes repeatedly failed to comply with FED. R.
CIV. P. 62(d) and the applicable case law in filing a supersedeas
bond in the present action, and because Grimes made no "good faith
argument for the extension, modification, or reversal of existing
-19- law." FED. R. CIV. P. 11. It imposed sanctions in the amount of
the "reasonable expenses incurred by Goerlitz in connection with
the defective supersedeas bond."
It is clear that under Rule 11, an attorney has the obligation
to conduct "a reasonable inquiry into the law such that the
document [that he signs] embodies existing legal principles." Yet,
it is equally clear that when Goerlitz attempted to enforce the
judgment against Gulf Coast, Grimes' response was to file an
incomplete, insufficient supersedeas bond.10 Acting to protect the
interest of her client, Goerlitz's attorney filed an opposition to
the motion to approve the supersedeas bond, pointing out the
defects in the bond, and requesting sanctions against Grimes.
Grimes then filed an amended supersedeas bond that corrected
several of the problems with his original bond, but which still
failed to give an adequate assurance that the bond would be
effective.11
10 First, the defense attorney filed the supersedeas bond prior to appealing the judgment of the district court. FED. R. CIV. P. 62(d) specifically provides that a bond "may be given at or after the time of filing the notice of appeal." Further, the amount of the bond failed properly to cover costs as required under the law. See Metz v. United States, 130 F.R.D. 458, 459 (D. Kan. 1990); Avirgan v. Hull, 125 F.R.D. 185, 188 (S.D. Fla. 1989) (citing Poplar Grove Planting and Refining Co., Inc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979)). 11 Specifically, Mr. Grimes signed the bond as "attorney-in- fact," but there was no evidence that Mr. Grimes had the power to commit Gulf Coast to pay the bond. At a hearing on the matter, the district judge ruled that the bond would be considered insufficient until the president of Gulf Coast signed the bond.
-20- Given that Grimes signed a supersedeas bond that clearly
failed to comport with the requirements called for by law, and
given that Goerlitz's counsel acted reasonably in seeking to
protect the interests of her client, we cannot say that the
district court abused its discretion in imposing sanctions against
Grimes in the amount ordered. Accordingly, the order for sanctions
is affirmed.
IV
Having found that Gulf Coast waived any right that it might
have had to a binding jury verdict for its equitable claims, and
having found that the district court's findings in favor of
Goerlitz on her Title VII claims were not clearly erroneous, we
AFFIRM the Title VII judgment of the district court. Further, we
AFFIRM the district court's rulings denying Goerlitz's JNOV and new
trial motions. We also AFFIRM the imposition of sanctions against
Gulf Coast's attorney, Walter Grimes. We REVERSE, however, the
district court's award of attorneys' fees to Goerlitz because we
find that the district court abused its discretion in determining
the amount of fees to be awarded. We therefore REMAND to the
district court for a recalculation of Goerlitz's attorneys' fees
consistent with the observations of this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
-21- E. GRADY JOLLY, Circuit Judge, concurring in part and dissenting in
part.
Because I would hold that no attorneys' fees are warranted in
this case, I respectfully dissent from Part III.B of the opinion.
I concur, however, in all other parts of the opinion.
Goerlitz's private attorneys intervened in this case only to
prosecute her state law claims; that is, the claims that the EEOC
was not statutorily authorized to pursue on behalf of Goerlitz.
Each and every state law claim was rejected. There is nothing in
the record to suggest that the EEOC attorneys were not perfectly
capable of handling the Title VII claims. Moreover, these were the
only ones on which she prevailed. In my view, private attorneys
were wholly and completely redundant and unnecessary, and payment
of any fees to them constitutes a windfall. I adhere to the
position that I earlier expressed, when I wrote for the majority,
that "--absent unusual exceptions not here present--that it is
patently 'redundant' and 'unnecessary' for a private attorney to
participate in the litigation of identical claims that are
simultaneously being pursued by the government-paid attorneys of
the EEOC." Clear Lake Dodge, 25 F.3d at 272.
For these reasons, I respectfully dissent.