Melissa MIGIS, Plaintiff-Appellee, Cross-Appellant, v. PEARLE VISION, INC., Defendant-Appellant, Cross-Appellee

135 F.3d 1041, 1998 U.S. App. LEXIS 4137, 73 Empl. Prac. Dec. (CCH) 45,308, 78 Fair Empl. Prac. Cas. (BNA) 1379, 1998 WL 72100

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 10, 1998
• Docket: 96-11406
• Status: Published

Opinions

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 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 MeQuay 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. MeQuay 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. MeQuay 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.

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 Culpep-per, 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 MeQuay’s testimony that Mig-is was qualified for a senior programmer position.

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 [Mig-is’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, 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)(l) & (b)(3)(D). The statute describes such compensatory damages as 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, — U.S. -, 117 S.Ct. 767, 136 L.Ed.2d 713 (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 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, 98 S.Ct. 1042, 55 L.Ed.2d 252 (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 § 11(A)(2), at 10-12 (July 14,1992)).

In Farpella-Crosby v. Horizon Health Care, 97 F.3d 803 (5th Cir.1996), the plaintiff prevailed on a Title VTI 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 that the work environment was “very stressful” and that she was “embarrassed every time [she] went in there.” A fiiend 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 Mig-is’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, — U.S.-, 118 S.Ct. 64, 139 L.Ed.2d 26 (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 medical evidence or corroborating testimony in addition to her own testimony. Far-pella-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 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 717-19.

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 Industries, 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, 113 S.Ct. 566, 574, 121 L.Ed.2d 494 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)).

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 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 plaintiffs 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 df ... 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, 113 S.Ct. at 575 (quoting City of Riverside v. Rivera, 477 U.S. 561, 585, 106 S.Ct. 2686, 2700, 91 L.Ed.2d 466 (1986) (Powell, J., concurring)). Migis also argues that this is not a case where the plaintiffs suit can be segregated into discrete 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 plaintiffs claims were interrelated, nonfrivolous, and raised in good faith.” Hensley, 461 U.S. at 436, 103 S.Ct. at 1941.

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 plaintiffs 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 discre.tion. 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 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 ease.” 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.

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, 68 S.Ct. 525, 542, 92 L.Ed. 746 (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, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985)).

2 . Migis v. Pearle Vision, Inc., 944 F.Supp. 508 (N.D.Tex.1996).

3 . Id. at 514.

4 . Id. at 516.

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.