Migis v. Pearle Vision Inc

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

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-11406 _____________________

MELISSA MIGIS,

Plaintiff-Appellee, Cross-Appellant,

versus

PEARLE VISION, INC.,

Defendant-Appellant, Cross-Appellee.

_______________________________________________________

Appeals from the United States District Court for the Northern District of Texas _______________________________________________________ March 10, 1998

Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.

REAVLEY, Circuit Judge:

The court below entered a judgment in favor of Melissa Migis

on her claim of pregnancy discrimination under Title VII, 42

U.S.C. §§ 2000e et seq. Defendant Pearle Vision, Inc. appeals on

various grounds, and Migis cross appeals on an item of costs. We

reverse the award of attorney’s fees, and remand for further

proceedings. Otherwise we affirm. A. Liability for Pregnancy Discrimination

Pearle Vision argues that the trial court erred in denying

its motion for judgment and finding that Pearle Vision had

discriminated against Migis on the basis of her pregnancy.1

Title VII prohibits employer discrimination against an individual

because of such individual’s sex. 42 U.S.C. § 2000e-2(a)(1).

The term “because of sex” includes “because of . . . pregnancy,

childbirth, or related medical conditions.” Id. § 2000e(k).

While Pearle Vision presented a substantial case that

Migis’s termination was not based on her pregnancy, but instead

was part of an ongoing, large-scale reduction in force, we cannot

say that the district court’s finding of discrimination was

clearly erroneous. The evidence in support of that finding

includes the following.

Migis was a programmer/analyst in the corporate systems

group of Pearle Vision’s information services department. For

1 By agreement the case was tried to a United States magistrate judge under 28 U.S.C. § 636(c). Upon the entry of judgment by the magistrate, the parties were entitled to appeal the judgment to this court “in the same manner as an appeal from any other judgment of a district court.” Id. § 636(c)(3). The district court’s findings in this Title VII case are subject to the clearly erroneous standard of review. EEOC v. Clear Lake Dodge, 60 F.3d 1146, 1151 (5th Cir. 1995). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). “Where the court’s finding is based on its decision to credit the testimony of one witness over that of another, ‘that finding, if not internally inconsistent, can virtually never be clear error.’” Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir. 1993) (quoting Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)).

2 three years she received positive employee evaluations,

indicating that her work was fully satisfactory though not

exceptional. Migis learned that she was pregnant in January of

1994. She told her immediate supervisor, Mark McQuay, but asked

that McQuay keep the knowledge of her pregnancy to himself.

Migis was concerned “because of all the women that were being let

go and all the discrimination which was taking place at the

time.” She also wanted to wait until Mike Maher, a vice

president, was transferred back to the United Kingdom in March,

because she considered Maher a sexist. Management became aware

of Migis’s pregnancy in March or April.

Due to pregnancy complications related to her diabetes and

on the advice of her physician, Migis began working half days,

and on April 6 went on temporary disability. She intended to

return to work, and so informed McQuay.

McQuay reported to Glenn Graves, the director of information

services, who in turn reported to Colin Heggie, a senior vice

president. In February management began discussions of a staff

reduction in the corporate services group. McQuay testified that

management decided to terminate Randy Ragsdale, a senior

programmer/analyst, and Tracy Culpepper, a programmer/analyst.

Confidential memoranda from Graves to Heggie also reflect this

decision. McQuay testified that he had recommended that Migis be

retained because of her performance, and that there was no reason

she could not be promoted to senior programmer/analyst.

3 Kelly Keahon, the head of the human resources department,

advised Graves to clearly state and document for Heggie the

anticipated personnel actions. While Graves testified that

management had decided to eliminate three positions in the

corporate systems group, his memos reflect that only two

positions, held by Ragsdale and Culpepper, were to be eliminated.

In addition, an organizational chart has handwritten notes by

Graves indicating that staffing in the corporate systems group

was to be reduced by one senior programmer/analyst and one

programmer/analyst. Graves did not tell McQuay that Migis, in

addition to Ragsdale and Culpepper, was slated for termination.

McQuay testified that Graves drew a distinction between

maternity leave and disability leave, and was of the view that

Migis had taken the latter. McQuay stated that Graves was

“excited” that Migis was on disability leave because he thought

Pearle Vision had greater latitude to eliminate the job if the

latter type of leave was taken. Graves denied making such a

statement, but the magistrate judge found McQuay’s testimony more

credible on this point.

Migis gave birth in September, and on October 4 Migis met

with Graves regarding her return to work. She was told that her

position had been eliminated. The magistrate judge found that a

senior programmer position in the corporate systems group was

retained, and that a new position for a senior programmer in that

group was created. The court credited McQuay’s testimony that

Migis was qualified for a senior programmer position.

4 Graves told Migis that there was an opening for a programmer

in the product support group of the information services

department. This position went to Susan Marshall, who was not

pregnant and had worked for Pearle Vision as a contract employee

since September. Graves testified that members of the product

support group were opposed to bringing Migis into their group

because of her work ethic and judgment. He stated that he and

the head of the product support group did not “attempt to

determine [Migis’s] qualifications in relationship to the

qualifications or in comparison to the qualifications of Susan

Marshall.”

Given this and other evidence, the magistrate judge

concluded that Pearle Vision’s proffered reasons for eliminating

Migis’s job were pretextual, and that Pearle Vision had

discriminated against Migis on the basis of her pregnancy when it

terminated her. While Pearle Vision offered evidence to the

contrary, including plausible explanations for the documents

discussed above, we are not persuaded that the district court

clearly erred in finding a Title VII violation.

B. Back Pay Damages

Pearle Vision challenges the back pay awarded to Migis.

Migis was formally notified of her termination on November 7,

1994, when she received a separation agreement which she refused

to sign. Her compensation from Pearle Vision ceased on November

25. She received an offer of employment from another company on

December 19, but did not begin employment there until January 23,

5 1995. The court awarded back pay for the period between November

25 and January 23.

Pearle Vision argues that the back pay should only cover the

period from November 25 to December 19, the date of Migis’s new

job offer. A Title VII plaintiff has a duty to mitigate her

damages by using reasonable diligence to obtain substantially

equivalent employment. Sellers v. Delgado College, 902 F.2d

1189, 1193 (5th Cir. 1990). Whether the plaintiff has engaged in

such an effort is a question of fact subject to review for clear

error, and the burden is on the employer to prove failure to

mitigate. Id.

Migis testified that her new employer told her she could

start two weeks after the December 19 offer. However, she

explained that she canceled her day care after she lost her job

at Pearle Vision. She described finding new day care as “a very

strenuous process” and stated that she went to work immediately

once she arranged for the care of her daughter. The district

court did not clearly err in finding that Migis could not secure

suitable child care until January 23, and had accordingly used

reasonable diligence in mitigating her damages.

C. Compensatory Damages

Pearle Vision also challenges the district court’s award of

$5000 in compensatory damages. Where, as here, the employer has

more than 500 employees, Title VII claimants may recover

compensatory damages of up to $300,000. 42 U.S.C. §§ 1981a(a)(1)

& (b)(3)(D). The statute describes such compensatory damages as

6 including damages for “emotional pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life, and other nonpecuniary

losses.” Id. § 1981a(b)(3).

Our review of mental anguish damages is for abuse of

discretion. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927,

940 (5th Cir. 1996), cert. denied, 117 S. Ct. 767 (1997). In

Patterson, we reversed awards of mental anguish damages granted

to two plaintiffs suing under Title VII and 42 U.S.C. § 1981. We

held that awards under the two statutes are governed by the same

rules, and that mental anguish damages cannot be recovered absent

“some specific discernable injury to the claimant’s emotional

state.” Id. In Patterson, one of the plaintiffs, Patterson,

testified that her firing “emotionally scarred her and resulted

in unemployment for almost one year.” Id. Noting the lack of

medical evidence or corroborating testimony, we held that

Patterson had not offered sufficient competent evidence to

support the award of mental anguish damages, since “[n]o evidence

suggests that Patterson was humiliated or subjected to any kind

of hostile work environment.” Id. at 941. The second plaintiff,

Brown, suing for racial discrimination, testified that the work

environment was “unbearable” and was “tearing my self-esteem

down,” that he was subjected to racial epithets, and that he felt

“frustrated” and “real bad” at being judged for the color of his

skin. Id. at 939. Noting the lack or corroborating testimony or

medical evidence, we found the evidence insufficient to sustain

an award for emotional damages, since “[n]o evidence suggests

7 that Brown suffered from sleeplessness, anxiety or depression.”

Id. at 939. The court further noted that immediately after his

constructive discharge Brown obtained new employment at a higher

wage. Id. at 939-40.

Patterson did not hold that medical evidence or

corroborating testimony is always required for an award of mental

anguish damages. Instead we stated that some other circuits

“have recognized that a claimant’s testimony alone may not be

sufficient to support anything more than a nominal damage award,”

and that Carey v. Piphus, 435 U.S. 247 (1978), “requires a degree

of specificity which may include corroborating testimony or

medical or psychological evidence in support of the [mental

anguish] damage award.” Id. at 938, 940 (emphasis added).

Patterson also quoted at length an EEOC policy statement

which recognizes that emotional harm may manifest itself “as

sleeplessness, anxiety, stress, depression, marital strain,

humiliation, emotional distress, loss of self esteem, excessive

fatigue, or a nervous breakdown.” Id. at 939 (quoting EEOC POLICY

GUIDANCE NO. 915.002 § II(A)(2), at 10-12 (July 14, 1992)).

In Farpella-Crosby v. Horizon Health Care Corp., 97 F.3d 803

(5th Cir. 1996), the plaintiff prevailed on a Title VII hostile

work environment claim. We upheld an award of compensatory

damages. The plaintiff testified that she felt “very

embarrassed, very belittled,” “very disgusted,” “hopeless,”

“about two inches high,” and “started to feel pretty stupid,” as

a result of a superior’s harassment. Id. at 809. She stated

8 that the work environment was “very stressful” and that she was

“embarrassed every time [she] went in there.” A friend testified

that she and plaintiff began to go everywhere together, believing

that there was “safety in numbers.” Id. Discussing and

distinguishing Patterson, we held this evidence sufficient to

support an award of compensatory damages, since the jury could

conclude that plaintiff “suffered emotional harm that manifested

itself as humiliation and stress.” Id.

The evidence of mental anguish testimony in the pending case

consisted solely of Migis’s testimony. She testified that her

termination, which came without warning, was “a major

inconvenience,” and that she suffered low self-esteem “not only

from not having worked but from getting terminated and not

offered a position that I thought I was qualified for . . . .”

With her new baby she suffered financial hardships. She stated

that she suffered “almost what I would call stress attacks or

anxiety attacks,” marital hardship, and “major stress,” as well

as “lot[s] of crying, sleeplessness.”

“Judgments regarding noneconomic damages are notoriously

variable.” Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir.

1996), cert. denied, 118 S. Ct. 64 (1997). We conclude that the

award of compensatory damages was within the court’s discretion.

As explained above, Patterson recognizes that mental anguish

damages may be appropriate where the plaintiff suffers

sleeplessness, anxiety, stress, marital problems, and

humiliation, and does not always require that the plaintiff offer

9 medical evidence or corroborating testimony in addition to her

own testimony. Farpella-Crosby, too, accepts that stress and

humiliation can support an award of mental anguish damages.

Migis’s testimony of anxiety, sleeplessness, stress, marital

hardship and loss of self-esteem was sufficiently detailed to

preclude us from holding that the district court abused its

discretion in its award of compensatory damages.

D. Attorney’s Fees

Pearle Vision challenges the district court’s award of

approximately $81,000 in attorney’s fees to Migis. Migis had

requested approximately $110,000 in fees. Under Title VII the

court “may allow the prevailing party . . . a reasonable

attorney’s fee . . . .” 42 U.S.C. § 2000e-5(k).

The calculation of attorney’s fees involves a well-

established process. First, the court calculates a “lodestar”

fee by multiplying the reasonable number of hours expended on the

case by the reasonable hourly rates for the participating

lawyers. Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319,

324 (5th Cir. 1995). The court then considers whether the

lodestar figure should be adjusted upward or downward depending

on the circumstances of the case. Id. In making a lodestar

adjustment the court should look to twelve factors, known as the

Johnson factors, after Johnson v. Georgia Highway Express, Inc.,

488 F.2d 714 (5th Cir. 1974). The factors are: (1) the time and

labor required for the litigation; (2) the novelty and difficulty

of the questions presented; (3) the skill required to perform the

10 legal services properly; (4) the preclusion of other employment

by the attorney due to acceptance of the case; (5) the customary

fee; (6) whether the fee is fixed or contingent; (7) time

limitations imposed by the client or the circumstances; (8) the

amount involved and the result obtained; (9) the experience,

reputation and ability of the attorneys; (10) the

“undesirability” of the case; (11) the nature and length of the

professional relationship with the client; and (12) awards in

similar cases. Id. at 717-719.

We review the district court’s initial determination of

reasonable hours and reasonable rates for clear error, and its

application of the Johnson factors for abuse of discretion.

Louisiana Power & Light, 50 F.3d at 324, 329. Some of these

factors are subsumed in the initial lodestar calculation and

should not be double counted. Shipes v. Trinity Indus. Corp.,

987 F.2d 311, 320 (5th Cir. 1993).

We have explained that, of the Johnson factors, the court

should give special heed to the time and labor involved, the

customary fee, the amount involved and the result obtained, and

the experience, reputation and ability of counsel. Von Clark v.

Butler, 916 F.2d 255, 258 (5th Cir. 1990). The Supreme Court has

twice made clear that “the most critical factor” in determining

the reasonableness of a fee award in a civil rights suit “is the

degree of success obtained.” Farrar v. Hobby, 506 U.S. 103, 114

(1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)).

11 The magistrate judge recognized the above procedure, and

entered a careful and thorough order analyzing Migis’s fee

request and Pearle Vision’s objections.2 The court noted that

the suit was hotly contested and that Pearle Vision amassed over

$200,000 in attorney’s fees.3 The court reduced the lodestar

amount it calculated by ten percent based on the results

obtained.4 Nevertheless, we conclude that the court did not give

adequate consideration to the eighth Johnson factor, the amount

involved and the result obtained.

By any fair measure, Migis’s success relative to the relief

she sought was limited. She proceeded to trial on the dual

claims that Pearle Vision discriminated against her in

terminating her position and in failing to hire her for the

opening in the product support group. The district court only

found discrimination as to the termination. Further, her

complaint alleged four acts of discrimination against Migis “on

account of her sex and/or pregnancy,” including her discharge,

Pearle Vision’s failure to allow her to return to work,

discrimination in the terms, conditions, and privileges of her

employment, and retaliation. Migis prevailed only on the first

theory, and only on the basis of pregnancy discrimination. As

indicated in interrogatory answers, she sought recovery of back

2 Migis v. Pearle Vision, Inc., 944 F. Supp. 508 (N.D. Tex. 1996). 3 Id. at 514. 4 Id. at 516.

12 pay and benefits of $25,000, and punitive and compensatory

damages of $300,000.5 At trial she asked for $50,000 in

compensatory damages. The court awarded her only $7,233.32 in

back pay, $5000 in compensatory damages, and no punitive

damages.6

Migis argues that in addition to the award of damages,

“[s]he received, importantly, a finding and declaration by the

court that she had been discriminated against on the basis of

pregnancy.” The judgment indeed declares that Pearle Vision

discriminated against her. However, the Supreme Court has held

that such a declaration does not alter the rule that the

plaintiff’s monetary success in a private civil rights suit must

be the primary determinant of the attorney’s fee. “Where

recovery of private damages is the purpose of . . . civil rights

litigation, a district court, in fixing fees, is obligated to

give primary consideration to the amount of damages awarded as

compared to the amount sought.” Farrar, 506 U.S. at 114 (quoting

City of Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell,

J., concurring)). Migis also argues that this is not a case

where the plaintiff’s suit can be segregated into discrete

5 Although Migis sought $300,000 in compensatory damages and $300,000 in punitive damages, she correctly points out that by statute the sum of these two cannot exceed $300,000. 42 U.S.C. § 1981a(b)(3)(D). 6 The court also awarded prejudgment interest of $1058.17 and post-judgment interest at a specified rate, but we see no relevance to these awards. The award of interest is automatic and bears no relation to the effort or skill of the attorneys or any other Johnson factor. It merely adjusts the damage award to reflect the time value of money.

13 claims, because all of her contentions involved a common core of

facts, and because she only prosecuted a single, discrete claim

of pregnancy discrimination. Even if Migis’s characterization is

correct, where “a plaintiff has achieved only partial or limited

success, the product of hours reasonably expended on the

litigation as a whole times a reasonable hourly rate may be an

excessive amount. This will be true even where the plaintiff’s

claims were interrelated, nonfrivolous, and raised in good

faith.” Hensley, 461 U.S. at 436.

The attorney’s fee award was over six and one-half times the

amount of damages awarded. Migis sought over twenty-six times

the damages actually awarded. Regardless of the effort and

ability of her lawyers, we conclude that these ratios are simply

too large to allow the fee award to stand. We hold that the

district court abused its discretion by failing to give adequate

consideration to the result obtained relative to the fee award,

and the result obtained relative to the result sought. We

therefore reverse the award of attorney’s fees and remand the

case for a new determination of fees consistent with this

opinion.

E. Costs

Pearle Vision and Migis complain of the district court’s

award of costs. Migis requested costs of $6400.64. The district

court awarded costs of $4297.32. It disallowed the witness and

process fees for certain witnesses, the cost of plaintiff’s

14 videotaped deposition, and costs associated with computerized

legal research, couriers, postage and copying.

The district court has broad discretion in taxing costs, and

we will reverse only upon a clear showing of abuse of discretion.

Alberti v. Klevenhagen, 46 F.3d 1347, 1358 (5th Cir. 1995). The

trial court “has wide discretion with regard to the costs in a

case and may order each party to bear his own costs.” Hall v.

State Farm Fire & Cas. Co., 937 F.2d 210, 216 (5th Cir. 1991).

Pearle Vision argues that the district court should have

disallowed Migis’s costs associated with pursuing her

unsuccessful claim that Pearle Vision discriminated against her

in failing to offer her a new position. The district court

disallowed a substantial portion of the costs Migis requested.

Even assuming that it is feasible to segregate costs by the two

claims Migis prosecuted, Pearle Vision’s refusal to rehire her in

a new position was arguably of evidentiary value to the claim on

which she did prevail--discrimination in her termination--even if

the refusal to rehire her was not itself found to be a separate

Title VII violation. We cannot say that the court abused its

discretion in awarding the costs that it did.

Migis complains that the court erred in denying her the cost

of her videotaped deposition. The deposition was transcribed by

a court reporter and videotaped. Pearle Vision provided Migis a

copy of the transcript. Migis requested and paid for a copy of

the videotape. As to deposition fees, 28 U.S.C. § 1920(2) only

allows for the recovery of “[f]ees of the court reporter for all

15 or any part of the stenographic transcript necessarily obtained

for use in the case.” There is no provision for videotapes of

depositions. Even if the statute can be interpreted to include

such copies, Migis does not show that the videotape of her own

deposition, in addition to the transcript, was “necessarily

obtained for use in the case.” We see no abuse of discretion in

denying this cost.

For the foregoing reasons, the district court’s award of

attorney’s fees is reversed, and the case is remanded for a

redetermination of attorney’s fees. In all other respects the

judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

MIGIS V. PEARLE VISION, INC., NO. 96-11406

RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and

dissenting in part:

Let us consider the reason of the case. For

nothing is law that is not reason. Sir John Powell, Lord Raymond’s Reports (1765) vol. 2, p. 911.

In truth, the issues in this case are quite unextraordinary;

the majority has disposed of them most efficiently. On the

surface, for a case of this type, this is as it should be. This

- 16 - is especially true for the attorney’s fee question, which, as is

well-established, should not result in a second litigation and

take more time and effort (and paper) than the litigation on the

merits. So, on the surface, all is well.

But, lurking beneath this placid surface is an ever-

expanding, ever-growing, ever-devouring two-headed monster:

over-reaching Title VII litigation and concomitant fee awards.

Here, out of a plethora of claims, Migis succeeded on only one,

recovering little more than the rejected pre-trial settlement

offer. And, to add insult to injury, her award is dwarfed by the

fee awarded her attorney. As the majority notes, “Migis sought

over twenty-six times the damages actually awarded” and her

“attorney’s fee award was over six and one-half times the amount

of damages awarded”. Maj. Op. at 14. Obviously, something is

amiss. Reason, and reasonableness, have been lost in the

shuffle.

In sum, a person terminated in violation of Title VII, but

who found other work almost immediately at a higher compensation,

received only approximately $7,200 in back pay and benefits and

only $5,000 in compensatory damages (and, in fact, those

emotional distress damages should not have been awarded), but

rejected a $10,000 settlement offer along the way. To top it

off, under the Title VII fee-shifting provisions, her lawyer was

awarded $81,000! A fee of $81,000, when damages total only

approximately $12,000 and when a settlement offer of $10,000 is

rejected four months before trial is more than sufficient cause

for taking a close, close look not only at this case, but also at the system and procedures behind it. Where is reason? Where is

reasonableness?

Certainly, every case is different. Certainly, Title VII

fee-shifting serves a purpose. And, certainly, different factors

prompt different damages and fee awards. For the latter, the

lodestar, with its adjustment procedure, if applied properly,

should ensure an acceptable result — a fee that, as required by

Title VII, is “reasonable”. But, I fear that this procedure is

being applied in keeping with the times, with the idea that

nothing deserves something, and, especially in that regard, that

lawyers must be handsomely rewarded, notwithstanding that their

labors bore little, if any, fruit. This concern is particularly

true when rejection of a pre-trial settlement offer almost equal

to the total damages is added to the mix. Reason and

reasonableness are missing in action.

Excess has become an art form. This case, being a splendid

— better yet, sad — example, presents issues that demand far more

relief and adjustment than my able panel colleagues are willing

to accord. Therefore, I must respectfully dissent and hope that

this alarm, sounded at considerable, but necessary, length, will

reach some ears and, perhaps, help restore reason to the damages

and fees awarded in cases of this type. Reason can be restored.

Reasonableness can be achieved.

On the issues, I concur as to liability, back pay, and

denial of the cost of a copy of Migis’ deposition videotape.

But, because the evidence and our precedent do not support an

- 18 - award of more than nominal compensatory damages for emotional

distress, I dissent from affirming the $5,000 compensatory

damages award. And, although I concur in reversing the

attorney’s fee award and remanding for further proceedings, I

cannot agree either with the refusal to require reduction of the

lodestar for time spent on unsuccessful claims and in pursuit of

irrelevant evidence, or with awarding costs connected with that

pursuit.

To assist with focusing on my disagreement and concerns, a

restatement of the factual and procedural history is required.

I.

Pearle employed Migis in January 1991 as a

Programmer/Analyst in the Corporate Systems Group, part of the

Information Services Department, at Pearle’s headquarters in

Dallas, Texas. In early 1994, Migis’ diabetic condition

complicated her pregnancy; on the advice of her physician, she

began working half-days in late March. In early April, her

physician certified that Migis was unable to work due to her

physical condition; shortly thereafter, she requested, and was

granted, a leave of absence.

Migis gave birth to her child on 8 September. Two weeks

later, her doctor authorized her to return to work on 7 November.

In early October, Migis met with Glenn Graves, director of Migis’

department, who informed her that her position had been

eliminated, but that he would ascertain whether she would be

qualified for a position in the Product Support Group of the same

- 19 - department. However, Migis was not offered that position; her

employment with Pearle ceased effective 11 November 1994.

At the time her position was eliminated, Migis’ annual

salary was $40,000. On 19 December, just shy of six weeks after

her employment ended with Pearle, Migis accepted employment with

CompuCom; but, she did not begin work there until approximately a

month later, 23 January 1995. At CompuCom, Migis held the

position of programmer/analyst, at a higher annual salary

($43,840), plus a five percent pay-on-performance bonus. (About

a year after she began, her annual salary increased approximately

$4,000, to $47,800, plus retaining the five percent pay-on-

performance bonus.) In February 1995, less than a month

after beginning at CompuCom, Migis filed this action against

Pearle, claiming that it discriminated and/or retaliated against

her on account of her sex and/or pregnancy by discharging her;

failing to allow her to return to work; discriminating against

her in the terms, conditions, and privileges of her employment;

and retaliating against her. She sought to have Pearle

permanently enjoined from discriminating against her in violation

of Title VII; a declaratory judgment that its practices were in

violation of Title VII; reinstatement, back pay, and/or front

pay; compensatory and exemplary damages; attorney’s fees; costs;

and pre — and post — judgment interest. The parties consented to

trial before a magistrate judge.

At her three-day bench trial in June 1996, Migis dropped her

claims for reinstatement and front pay. The magistrate judge

- 20 - ruled that Pearle violated Title VII when it eliminated Migis’

position in the Corporate Systems Group; but, that she failed to

prove discrimination in connection with Pearle’s subsequent

decision not to hire her for the position in the Product Support

Group. (Migis does not challenge the latter ruling.)

Migis was granted declaratory relief and awarded $7,233.32

in back pay and benefits, $5,000 in compensatory damages, and

$1,058.17 for prejudgment interest. The court declined to award

punitive damages. And, following a separate hearing on Migis’

request for approximately $110,000 in attorney’s fees and $6,400

in costs, she was awarded approximately $81,000 and $4,300,

respectively. Migis v. Pearle Vision, Inc., 944 F. Supp. 508,

517-18 (N.D. Tex. 1996).

II.

A.

According to Pearle, the evidence demonstrates that Migis’

position, along with all other Programmer/Analyst positions in

the Corporate Systems Group, was eliminated as part of a

reduction in force. Notwithstanding my concurrence on liability,

recitation of the facts bearing on liability is necessary to

explain the basis of my disagreement on the compensatory damages,

attorney’s fee, and cost issues.

Needless to say, the magistrate judge’s finding of a Title

VII violation is reviewed under the clearly erroneous standard.

FED. R. CIV. P. 52(a); see E.E.O.C. v. Clear Lake Dodge, 60 F.3d

1146, 1151 (5th Cir. 1995). And, it is more than well-

- 21 - established that “a finding is clearly erroneous when although

there is evidence to support it, the reviewing court on the

entire evidence is left with a definite and firm conviction that

a mistake has been committed.” Id. (quoting Cupit v. McClanahan

Contractors, 1 F.3d 346, 348 (5th Cir. 1993), cert. denied, 510

U.S. 1113 (1994)). “We are not permitted to re-weigh the

evidence on appeal simply because we disagree with the choices

made by the district court.” Id. (citing Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 573-74 (1985)). “But we will

overturn the district court where there is only one permissible

view of the weight of the evidence.” Id.

The record supports the finding that Migis’ pregnancy was a

substantial factor in eliminating her position. For example,

after Migis went on leave of absence in April, memoranda dated 24

May and 22 July from Graves, director of the Information Services

Department, to Colin Heggie, chief financial officer, state that

two positions would be eliminated from the Corporate Systems

Group; and that the targeted positions were a Senior

Programmer/Analyst position held by Randy Ragsdale and a

Programmer/Analyst position held by Tracy Culpepper, both males.

The memoranda do not mention Migis or her position. Graves

testified that it was decided in late April or early May 1994

that all three positions, including Migis’, would be eliminated,

and that Migis’ position was not addressed because she was on

leave at the time and it was Pearle’s policy not to address

position eliminations affecting on-leave employees. The

- 22 - magistrate judge found that Graves’ testimony might explain why

Migis was not told that her job was being eliminated, but it did

not explain why Heggie was not fully informed of the reductions

in the Corporate Systems Group.

The magistrate judge relied also on the testimony of Kelly

Keahon, vice president of human resources at the time of the

staff reductions. Keahon testified that she told Graves to

document carefully his actions and to communicate with Heggie

regarding the staff reductions; and that she informed Graves that

it was not necessary to include the elimination of Migis’

position in the memoranda because that elimination did not have

any financial consequences to Pearle during fiscal year 1994.

But, when Graves was asked by the court to explain why the

memoranda contain no reference to the elimination of Migis’

position, he responded that he should have addressed it. Keahon,

however, testified that, if Graves said that the reason he did

not refer to Migis in the memoranda was because he made a

mistake, that would be inconsistent with what she told him.

The magistrate judge also relied on handwritten notations on

the bottom of an organizational chart, made by Graves at one of

the initial meetings when the staff reductions were discussed.

The notations refer to one Senior Programmer/Analyst and one

Programmer/Analyst. Graves testified that the notations indicate

that there were preliminary discussions about retaining one

Senior Programmer/Analyst and one Programmer/Analyst. But, the

magistrate judge found that “the weight of the credible evidence”

- 23 - led him to conclude that the notations refer to the positions

that were instead targeted for elimination, as indicated in the

memoranda.

The magistrate judge found further that Pearle’s explanation

was also undermined by the testimony of Mark McQuay, manager of

the Corporate Systems Group and Migis’ supervisor beginning in

early 1994. McQuay testified that Migis was not targeted for

elimination in the downsizing effort; that he recommended

retaining her; but that Graves was excited that Migis had taken

disability, instead of maternity, leave because Graves thought

(erroneously) that there was a distinction, and that he would not

have been able to eliminate her position had she taken maternity

leave. Graves denied making such a statement.

Pearle exhaustively attacks the findings, contending, inter

alia, that the magistrate judge misinterpreted Graves’ notations

on the organizational chart and mischaracterized McQuay’s

testimony. It asserts also that the magistrate judge ignored

other evidence, including: that all organizational charts

created after May 1994 consistently reflect the elimination of

all Programmer/Analyst positions in the Corporate Systems Group,

including the one formerly held by Migis; the handwritten

notation “upon return” beside Migis’ name on the organizational

chart, which, according to Pearle, corroborates Graves’ testimony

that Ragsdale and Culpepper’s positions were to be eliminated as

soon as possible, but that Migis’ position would be eliminated

“upon return” from her leave; and McQuay’s testimony regarding

- 24 - his dissatisfaction with Migis’ performance. Pearle contends

further that the magistrate judge erred by relying on McQuay’s

testimony regarding Graves’ alleged statement about the nature of

Migis’ leave, because McQuay’s testimony is so internally

inconsistent and contradictory that no reasonable person would

believe it.

Pearle’s contentions are not without substance; it presented

considerable plausible evidence that the elimination of Migis’

position was part of a massive reduction in force. But, there is

also substantial, plausible evidence to support the magistrate

judge’s finding that Pearle’s explanation was, instead, a pretext

for discrimination. It goes without saying that credibility

determinations are “peculiarly within the province of the

district court” when it sits as a trier of fact. Kendall v.

Block, 821 F.2d 1142, 1146 (5th Cir. 1987); see also Patterson v.

P.H.P. Healthcare Corp., 90 F.3d 927, 933 (5th Cir. 1996)

(internal quotation marks and citations omitted) (“Where the

court’s finding is based on its decision to credit the testimony

of one witness over that of another, that finding, if not

internally inconsistent, can virtually never be clear error.”),

cert. denied, ___ U.S. ___, 117 S. Ct. 767 (1997). We will

declare testimony incredible as a matter of law only when it “is

so unbelievable on its face that it defies physical laws”.

United States v. Casteneda, 951 F.2d 44, 48 (5th Cir. 1992)

(internal quotation marks and citation omitted). Contrary to

- 25 - Pearle’s assertion, McQuay’s testimony does not come close to

meeting that standard.

In sum, because the magistrate judge’s “account of the

evidence is plausible in light of the record viewed in its

entirety, [we] may not reverse it even though convinced that had

[we] been sitting as the trier of fact, [we] would have weighed

the evidence differently. Where there are two permissible views

of the evidence, the factfinder's choice between them cannot be

clearly erroneous.” Anderson, 470 U.S. at 573-74.

B.

Pearle challenges the damages on two grounds: back pay for

the one-month period between Migis’ accepting the CompuCom offer

and beginning work; and compensatory damages of $5,000. Although

I agree that the back pay award is not clearly erroneous, I

respectfully dissent from affirming the compensatory damages;

under our precedent, Migis failed to prove that she is entitled

to more than nominal damages for emotional distress.

Under Title VII, as amended by the Civil Rights Act of 1991,

42 U.S.C. § 1981a(a)(1), “a Title VII plaintiff who wins a back

pay award may also seek compensatory damages for future pecuniary

losses, emotional pain, suffering, inconvenience, mental anguish,

loss of enjoyment of life, and other nonpecuniary losses.”

Landgraf v. USI Film Products, 511 U.S. 244, 253 (1994) (internal

quotation marks and citation omitted). In awarding the

compensatory damages, the district court did not make supporting

findings. Pearle maintains that the award should be reversed

- 26 - because Migis did not present any economic, medical, or

psychological evidence to support the award.

In Carey v. Piphus, 435 U.S. 247, 255-56 (1978), the Court

held that compensatory damages such as for emotional harm caused

by the deprivation of constitutional rights may be awarded only

when the claimant submits proof of actual injury. Although Carey

refers to damage awards under 42 U.S.C. § 1983, its reasoning

applies to claims for emotional harm under 42 U.S.C. § 1981.

Patterson, 90 F.3d at 938 & n.11. And, the same standards apply

for Title VII emotional distress claims. Id. at 940.

Under Carey, a claimant must present testimony and/or other

evidence to show the nature and extent of emotional harm caused

by the alleged violation. Patterson, 90 F.3d at 938. Carey

stated:

We use the term “distress” to include mental suffering or emotional anguish. Although essentially subjective, genuine injury in this respect may be evidenced by one’s conduct and observed by others.... [A]n award of damages must be supported by competent evidence concerning the injury.

435 U.S. at 264 n.20. “In order to establish intangible loss, we

recognize that Carey requires a degree of specificity which may

include corroborating testimony or medical or psychological

evidence in support of the damage award.” Patterson, 90 F.3d at

940. “Hurt feelings, anger and frustration are part of life.

Unless the cause of action manifests some specific discernable

injury to the claimant’s emotional state, we cannot say that the

specificity requirement of Carey has been satisfied.” Id.

- 27 - The 1991 amendments allowing compensatory damages under

Title VII have been interpreted by the EEOC to require physical

manifestations in order to recover for emotional harm:

Damages are available for the intangible injuries of emotional harm such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. Other nonpecuniary losses could include injury to professional standing, injury to character and reputation, injury to credit standing, loss of health, and any other nonpecuniary losses that are incurred as a result of the discriminatory conduct. Non- pecuniary losses for emotional harm are more difficult to prove than pecuniary losses. Emotional harm will not be presumed simply because the complaining party is a victim of discrimination. The existence, nature, and severity of emotional harm must be proved. Emotional harm may manifest itself, for example, as sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self esteem, excessive fatigue, or a nervous breakdown. Physical manifestations of emotional harm may consist of ulcers, gastrointestinal disorders, hair loss, or headaches.... The Commission will typically require medical evidence of emotional harm to seek damages for such harm in conciliation negotiations.

Patterson, 90 F.3d at 939 (quoting EEOC POLICY GUIDANCE NO. 915.002

§ II(A)(2), at 10-12) (first emphasis added; second emphasis in

original). “Our standard of review for awards based on

intangible harms such as mental anguish is deferential to the

fact finder because the harm is subjective and evaluating it

depends considerably on the demeanor of witnesses.” Id. at 937-

38 (internal quotation marks and citations omitted). “We ...

review the district court’s emotional damage award for abuse of

discretion.” Id. at 940.

- 28 - The Patterson case, discussed by the majority, is

instructive in evaluating Migis’ compensatory damage award. In

Patterson, the district court awarded Brown $40,000 for emotional

distress under § 1981 and awarded Patterson $150,000 for

emotional damage, mental pain and suffering under Title VII. Id.

at 939, 940. The evidence submitted by Brown in support of his

claim for emotional harm under § 1981 consisted of the following:

he testified that he felt “frustrated” and “real bad” for being

judged by the color of his skin; explained that the work

down”; and “stated that it ‘hurt’ and made him ‘angry’ and

‘paranoid’ to know that his supervisor referred to [him] as a

‘porch monkey’ or a ‘nigger’ and generally thought that he was

inferior to white employees.” Id. at 939.

Our court held that this evidence was insufficient to

support anything more than a nominal damage award, because Brown

did not present evidence with the specificity required by Carey,

did not testify as to any manifestations of harm listed by the

EEOC policy statement, and presented no corroborating testimony

or expert medical or psychological evidence of damages caused by

his alleged distress; no evidence suggested that Brown suffered

from sleeplessness, anxiety, or depression; and, immediately

after his constructive discharge, he obtained other employment

for a higher wage. Patterson, 90 F.3d at 939-40.

As noted, Patterson sued the same employer as did Brown.

Patterson’s emotional harm award was based on her testimony that

- 29 - her retaliatory firing emotionally scarred her, that she suffered

mental anguish during her unemployment, and that she endured a

great deal of familial discord arising from having to leave her

children while she worked in other areas. Id. at 940. Our court

stated: “Obviously, the retaliatory discharge caused a

substantial disruption in Patterson’s daily routine.” Id. at

941. But, we concluded, again, that the evidence would not

permit anything more than nominal damages. Id. We noted, again,

that the record contained none of the listed evidentiary factors

in the EEOC policy statement; no corroborating testimony was

offered to support Patterson’s testimony; no evidence suggested

that she was humiliated or subjected to any kind of hostile work

environment; there was no expert medical or psychological

evidence to support a claim for emotional harm; and there was no

proof of actual injury. Id.

Migis testified that the elimination of her position was a

major inconvenience and burden because of financial obligations;

that she suffered from low self-esteem as a result of being

terminated and not offered a position for which she felt

qualified, and because she had been out of the work arena for

several months; that it was “a very discomforting feeling”; that

not being allowed to work impacted family finances and that she

had to buy used furniture for her child; that she suffered from

“general anxiety, stress or anxiety attacks”; that it “caused

some hardship on my marriage”; that it was “major stress”, and a

- 30 - “[l]ot of crying, sleeplessness”; and that wondering whether she

could afford diapers and formula “was not fun”.

The majority acknowledges that the evidence of mental

anguish consists solely of Migis’ testimony, but concludes that

her testimony of anxiety, sleeplessness, stress, marital

hardship, and loss of self-esteem was sufficiently detailed to

support $5,000 for mental anguish. Even assuming that the

majority correctly interprets Patterson as not requiring medical

evidence or corroborating testimony, I cannot agree that Migis’

testimony supports more than a nominal damages award.

First, Patterson and the EEOC policy statement require proof

of a causal relationship between the discriminatory conduct and

the emotional harm. See Patterson, 90 F.3d at 938; id. at 939

(quoting EEOC policy statement). Unlike the plaintiff in

Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 808-09 (5th

Cir. 1996), who testified that her emotional distress resulted

from her superior’s harassment, Migis did not testify that the

emotional harm she claims to have suffered resulted from illegal

discrimination; indeed, one can conclude from her testimony that

her emotional suffering would have been the same had her position

been eliminated for non-discriminatory reasons. Unfortunately,

and understandably, some form of distress is inevitable with job

loss. But, for recovery of more than nominal damages for such

distress, the law requires proof that it is caused by illegal

discrimination, not just the job loss.

- 31 - Second, pursuant to Patterson, Migis’ evidence for mental

distress lacks the specificity required by Carey and is

insufficient to support anything more than a nominal damage

award. See Carey, 435 U.S. at 266-67 (plaintiffs entitled to

recover “nominal damages not to exceed one dollar” for denial of

procedural due process, without proof of actual injury);

Patterson, 90 F.3d at 941 (vacating Title VII emotional distress

award and remanding to district court with instructions to award

nominal damages; amount not specified); Archie v. Christian, 812

F.2d 250, 252 (5th Cir. 1987) (modifying judgment to hold

plaintiff entitled to receive one dollar in nominal damages);

Davis v. West Community Hospital, 755 F.2d 455, 459 (5th Cir.

1985) (remanding for entry of judgment for nominal damages of one

dollar); Irby v. Sullivan, 737 F.2d 1418, 1433 n.30 (5th Cir.

1984) (even if no emotional damages are awarded, plaintiff

entitled to nominal damages not to exceed one dollar if he has

been victim of intentional racial discrimination). See also

Price v. City of Charlotte, 93 F.3d 1241, 1246 (4th Cir. 1996)

(plaintiff’s failure to prove compensatory damages for

constitutional violation “results in nominal damages typically

one dollar”), cert. denied, ___ U.S. ___, 117 S. Ct. 1246 (1997).

Although Migis’ testimony mentioned some of the factors in

the EEOC policy statement (sleeplessness, anxiety, stress,

marital strain, loss of self-esteem), she admitted, on cross-

examination, that she had not mentioned any of those factors in

her pre-trial deposition. She admitted also that she had not

- 32 - sought counseling or therapy. There is no evidence that she was

humiliated or subjected to a hostile work environment. See

Patterson, 90 F.3d at 941; see also Bellows v. Amoco Oil Co., 118

F.3d 268, 277 n.28 (5th Cir. 1997) (Bellows’ testimony that

Amoco’s alleged discriminatory acts caused him to feel “less than

a man” and “ruined his reputation as a man” did not, “without

more”, sufficiently support an award of damages for emotional

harm), cert. denied, ___ U.S. ___, 118 S. Ct. 739 (1998); Annis

v. County of Westchester, ___ F.3d ___, 1998 WL 49317 (2d Cir.

1998) (plaintiff’s testimony that she was humiliated by the

gender discrimination she endured and sought counseling for it is

insufficient to warrant an award of compensatory damages because

“[s]he has not alleged any physical manifestations of her

emotional distress” and “introduced no affidavit or other

evidence to corroborate her testimony”); cf. Farpella-Crosby, 97

F.3d at 808-09 (affirming award of $7,500 compensatory damages

based on plaintiff’s testimony about hostile work environment,

harassment, and abusive treatment, corroborated by co-worker’s

testimony). She did not present any corroborating testimony and

did not offer any expert medical or psychological evidence of

damages caused by her claimed distress. See Patterson, 90 F.3d

at 939. Moreover, approximately two months after she was last

compensated by Pearle, she resumed work at a higher salary than

she received at Pearle. See id. at 939-40.

In short, the district court abused its discretion by

awarding more than nominal damages to Migis for emotional

- 33 - distress. Therefore, I respectfully dissent from the majority’s

affirming that award.

C.

In his fee application, Migis’ counsel requested

approximately $110,000 for 385.25 hours of work performed by

attorneys and legal assistants and $6,400 for costs. Migis, 944

F. Supp. at 510. Over Pearle’s objections, approximately $81,000

in fees and $4,300 in costs were awarded. Pearle challenges

both; Migis, one item of disallowed costs.

In line with my concurrence in reversing the attorney’s fee

award and remanding for further proceedings, I agree that the

magistrate judge, when adjusting the lodestar, abused his

discretion by failing to adequately consider the results obtained

as compared to the relief sought.

However, I disagree with the majority’s implicit conclusion

that, when calculating the lodestar, the magistrate judge did not

clearly err by including hours spent on unsuccessful claims and

unnecessary discovery in pursuit of irrelevant evidence.

Concomitantly, I dissent from allowing costs for those

unsuccessful claims.

Finally, and perhaps most importantly, the majority fails to

give sufficient guidance for reconsideration of the lodestar

adjustment on remand, particularly with respect to Migis’ refusal

of the settlement offer and the relevance of the fees charged by

Pearle’s counsel. We should offer guidance on both, especially

the settlement offer subissue.

- 34 - These issues inhabit familiar ground. For many years, that

terrain has been thoroughly and painstakingly analyzed, checked,

swept, and probed. But, that does not ensure that new booby

traps have not been set while courts were not on guard. Perhaps,

because the ground is so familiar, courts have become less

watchful, less demanding, than they should be. Perhaps, things

have become too routine, and courts have grown lax. Perhaps,

courts need to return to the basic course, and re-walk this

ground. In doing so, the district court’s errors loom large and

fatal.

1.

For starters, it is well to remember than only a reasonable

fee may be awarded. There is that word again — reasonableness.

Title VII provides, in pertinent part, that “the court, in its

discretion, may allow the prevailing party ... a reasonable

attorney’s fee ... as part of the costs”. 42 U.S.C. § 2000e-5(k)

(emphasis added).

Pursuant to the well-established, and equally well-known,

procedure for satisfying the statutory command that the

attorney’s fee be reasonable, the district court determines, and

then multiplies, the number of hours reasonably expended on the

litigation by the reasonable hourly rates for the participating

lawyers; it may adjust this “lodestar” in the light of the 12

well-known, relevant case-related factors enunciated in Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

See Farrar v. Hobby, 506 U.S. 103, 114-15 (1992); e.g., Louisiana

- 35 - Power & Light Co. v. Kellstrom, 50 F.3d 319, 323-24 (5th Cir.),

cert. denied, ___ U.S. ___, 116 S. Ct. 173 (1995).

Admittedly, and as noted, “[a] request for attorney’s fees

should not result in a second major litigation.” Hensley v.

Eckerhart, 461 U.S. 424, 437 (1983). Nor do we require the

district court’s Johnson factor analysis “to be so excruciatingly

explicit ... that decisions of fee awards consume more paper than

did the cases from which they arose”. Louisiana Power & Light

Co., 50 F.3d at 331 (internal quotation marks and citation

omitted). On the other hand, when, as here, the fee request is

so excessive, especially in the light of the meager results

achieved, the request must be given the closest scrutiny.

Hour and rate determinations are reviewed only for clear

error, Louisiana Power & Light Co., 50 F.3d at 324; lodestar

adjustments, for abuse of discretion. Id. at 329. As for the

latter, “the district court’s lodestar analysis [is examined]

only to determine if the [district] court sufficiently considered

the appropriate criteria”. Id. (emphasis in original). Of

course, the challenger “bears the burden of showing that [a

change] is warranted.” Id.

As reflected in Farrar, 506 U.S. at 115, the Johnson factors

for the lodestar adjustment vel non hardly need repeating: (1)

required time and labor; (2) issues’ novelty and complexity; (3)

skill required to properly litigate them; (4) whether attorney

had to refuse other work; (5) his customary fee; (6) whether fee

fixed or contingent; (7) whether client or case circumstances

- 36 - imposed any time constraints; (8) amount involved and results

obtained; (9) experience, reputation, and ability of attorneys;

(10) whether case was “undesirable”; (11) type of attorney-client

relationship and whether it was long-standing; and (12) awards

made in similar cases. Louisiana Power & Light Co., 50 F.3d at

329 (citing Johnson, 488 F.2d at 717-19).

In district court, Pearle objected to both the time and rate

amounts, relying on (1) inadequacies in billing records; (2)

Migis’ failure to prevail on her claim that Pearle’s refusal to

offer her a position in the Product Support Group was

discriminatory; (3) unnecessary work; (4) excessive time charged

for completion of routine tasks; and (5) lack of novel or complex

legal issues. Migis, 944 F. Supp. at 511-12.

The district court rejected Pearle’s contention that the

billing records were inadequate due both to the vagueness of the

description of services rendered and to counsel’s failure to

segregate the time spent on various claims. It found that Pearle

had not identified any specific entries that were duplicative,

repetitive, or inherently unreasonable, and concluded that the

records were “more than adequate”. Id. at 512.

The district court acknowledged that Migis’ claims were

based on two different employment decisions, id. at 510; but, it

concluded that her claims were related. Id. Accordingly, it

rejected Pearle’s contention that 85.5 hours spent on

unsuccessful claims should be excluded. Id. It also rejected

Pearle’s contention that 156.75 hours should be excluded because

- 37 - they represented unnecessary or excessive time and “clerical”

work. Id. at 513.

And, although the district court agreed with Pearle’s

assertion that the issues were neither novel nor complex, it

disagreed that the number of hours invested in the case was

unreasonable. Id. It found significant defense counsel’s

billing Pearle over $200,000. Id. at 514.

The district court refused to award the requested hourly

rates of $300 for counsel and $70 for legal assistants, reducing

them to $250 for lead counsel, $200 for co-counsel, and $50 for

legal assistants. Id. at 514-15. (Pearle does not challenge

these rates on appeal.)

The resulting lodestar was approximately $90,000. But, the

district court found that “[t]he monetary damages awarded to

[Migis] simply [did] not justify a fee award” in that amount,

because it “would constitute the type of windfall repeatedly

condemned by the Supreme Court and the Fifth Circuit.” Id. at

516 (emphasis added). Therefore, based on the results obtained,

it reduced the lodestar — but, by only ten percent! Id.

Pearle also sought a reduction based on the contingent

nature of Migis’ fee. Her contingent-fee contract provides for a

fee of 45% of the amount recovered. However, it provides also

that, if fees are awarded in excess of that 45%, Migis’ fee

obligation is extinguished and her attorney keeps the fee

awarded.

- 38 - Of course, a contingent-fee arrangement does not

automatically limit the fee award, Blanchard v. Bergeron, 489

U.S. 87, 92 (1989). Nevertheless, “[t]he presence of a pre-

existing fee arrangement may aid in determining reasonableness

[because] [t]he fee quoted to the client or the percentage of the

recovery agreed to is helpful in demonstrating the attorney’s fee

expectation when he accepted the case.” Id. at 93 (internal

quotation marks and citations omitted; emphasis added). Although

the contingent nature of the fee arrangement may be considered in

determining whether to reduce the lodestar, a lodestar

enhancement cannot be based on that factor. City of Burlington

v. Dague, 505 U.S. 557, 567 (1992).

Along that line, the district court refused to adjust

downward based on the contingent nature of the fee; nor would it

so adjust because of the case’s desirability (Pearle claimed

that, for applying the “undesirability” Johnson factor, the case

was, in fact, desirable). Migis, 944 F. Supp. at 516-17. As a

result, the court determined that Migis was entitled to fees of

$80,718.75.

I agree with Pearle that the district court clearly erred by

awarding fees to Migis as the prevailing party on all issues and

abused its discretion by not giving due weight to the most

critical Johnson factor — the relationship between relief sought

and obtained — as required by Farrar, 506 U.S. at 114.

- 39 - a.

- 40 - Hensley states that a “district court ... should [,inter

alia,] exclude from [the] initial fee calculation [,the

lodestar,] hours that were not reasonably expended”, and that the

prevailing party’s counsel “should make a good-faith effort to

exclude from a fee request hours that are excessive, redundant,

or otherwise unnecessary, just as a lawyer in private practice

ethically is obligated to exclude such hours from his fee

submission.” 461 U.S. at 434 (internal quotation marks omitted).

Pearle’s attack on the lodestar concerns unsuccessful claims,

discovery as to irrelevant evidence, and inadequate billing

records.

Citing Hensley, the Supreme Court stated in City of

Burlington, 505 U.S. at 565: “[T]he statutory language limiting

fees to prevailing ... parties bars a prevailing plaintiff from

recovering fees relating to claims on which he lost”. Hensley

provides that, when a plaintiff succeeds on some, but not all, of

her claims, “two questions must be addressed”: (1) whether “the

plaintiff fail[ed] to prevail on claims that were unrelated to

the [successful] claims”; and (2) whether “the plaintiff

achiev[ed] a level of success that makes the hours reasonably

expended a satisfactory basis for making a fee award”. Hensley,

461 U.S. at 434.

The object of the first question is to determine the

successful and unsuccessful claims, and the degree to which such

claims are related; as stated, generally, it can and should be

- 41 - answered in the lodestar calculation prior to any adjustment.

See id. at 434-35 (fees should not be awarded for unrelated

unsuccessful claims). But, if those claims are so interrelated

that no distinction can be made as to the time spent on each,

“the district court’s focus should shift to the results obtained

and adjust the lodestar accordingly”. Louisiana Power & Light

Co., 50 F.3d at 327 n.13.

The second question addresses the degree of success achieved

on the successful claims and, generally, is more appropriately

considered in determining the lodestar adjustment. See Hensley,

461 U.S. at 440 (“[T]he inquiry does not end with a finding that

the plaintiff obtained significant relief. A reduced fee award

is appropriate if the relief, however significant, is limited in

comparison to the scope of the litigation as a whole.”); Farrar,

506 U.S. at 114 (internal quotation marks and citations omitted)

(“if ... plaintiff has achieved only partial or limited success,

[the lodestar] may be ... excessive”; “[w]here recovery of

private damages is the purpose of ... civil rights litigation, a

district court, in fixing fees, is obligated to give primary

consideration to the amount of damages awarded as compared to the

amount sought”).

Obviously, the extent to which successful and unsuccessful

claims are related is crucial in determining whether fees may be

awarded for work on the latter. Hensley addresses four

situations. First, when a plaintiff presents “distinctly

different claims for relief that are based on different facts and

- 42 - legal theories, ... work on an unsuccessful claim cannot be

deemed to have been expended in pursuit of the ultimate result

achieved”; accordingly, “no fee may be awarded for services on

the unsuccessful claim”. Hensley, 461 U.S. at 435.

Second, when the claims “involve a common core of facts[,]

or [are] based on related legal theories[,] [m]uch of counsel’s

time will be devoted generally to the litigation as a whole,

[and] it [will be] difficult to [separate] the hours expended [on

each claim]”; in such cases, “the district court should focus on

the significance of the overall relief obtained ... in relation

to the hours reasonably expended”. Id. (emphasis added).

Third, when “a plaintiff has obtained excellent results, ...

the fee ... should not be reduced simply because the plaintiff

failed to prevail on every contention.” Id.

And, finally, if “a plaintiff has achieved only partial or

limited success, the [lodestar] may be ... excessive[,] ... even

whe[n] the ... claims were interrelated, nonfrivolous, and raised

in good faith.” Id. at 436.

Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.

Id. (emphasis added).

As the district court and Migis’ opening statement

acknowledged, her claims were based on two different employment

decisions by Pearle: to eliminate her position; and not to offer

her another, 944 F. Supp. at 510. Migis was successful on the

- 43 - first, but not the second. Nevertheless, because the district

court found that both claims involved common facts or derived

from related legal theories, it included in the lodestar all

hours spent pursuing both claims.

The majority assumes arguendo that Migis is correct in

claiming her action cannot be broken into separate claims; and,

therefore, it mentions Migis’ failure to prevail on her claim of

discrimination in Pearle’s refusal to offer her a position in the

Product Support Group only in its discussion of the lodestar

adjustment under the eighth Johnson factor (amount involved and

result obtained). (In fact, as noted in its discussion of the

cost award, discussed infra, the majority apparently considers

the refusal to offer another position to have been of some

evidentiary value for the position elimination claim.) In my

view, Hensley requires that time spent on the unsuccessful claim

should be deducted prior to calculating the lodestar, rather than

when later considering whether to adjust the lodestar based on

the degree of success achieved.

The factual circumstances surrounding the decision to

eliminate Migis’ position in the Corporate Systems Group and the

decision not to offer her a position in the Product Support Group

were made at different times and by different decision-makers,

are easily distinguishable from an evidentiary and preparation

standpoint, and are not so interrelated that it would be

difficult to distinguish between the work done on each claim.

- 44 - Concerning her successful claim (position elimination),

Migis relied on her testimony and that of Graves, McQuay and

Rodriguez, whom she also deposed. She also deposed Gieseking,

Schwartz, and Smith; Smith did not testify at trial, and

Gieseking’s and Schwartz’s trial testimony was curtailed because

of the court’s exclusion of non-pregnancy-related evidence,

discussed below, and evidence regarding persons who were not

decision-makers.

For her unsuccessful claim (not offered another position),

Migis relied primarily on her testimony and that of Boswell and

Marshall, whom she also deposed. Although Migis subpoenaed

Melissa Kinnear, she neither called her as a witness nor deposed

her. Graves testified also about this claim; he and Migis were

the only witnesses whose testimony was relevant to both claims.

As stated, with the exception of Graves and Migis, none of these

witnesses offered any testimony that contributed to the success

of Migis’ position elimination claim.

Migis is not entitled to attorney’s fees for the hours spent

in pursuing this unsuccessful claim; and, therefore, the district

court clearly erred in including them in the lodestar.

Pearle asserts further that Migis’ counsel should not be

compensated for discovery relevant only to general sex (as

opposed to pregnancy) discrimination (including general hostility

toward gender, and Pearle’s managerial attitude toward female and

minority employees). As noted, such evidence was excluded at

- 45 - trial. But, the magistrate judge did not exclude time spent on

such discovery; and the majority does not address Pearle’s

contention.

For example, on 25 January 1996, counsel charged 9.25 hours

for “preparation for, and deposing, Mark McQuay, Russell Smith,

Rosie Rodriguez, and Carole Schwartz; review notes of same and

dictation.” (Emphasis added.) And, counsel charged 6.75 hours

on 22 February 1996 for preparing for, and deposing, Doris

Gieseking and Barry Boswell, and review of notes regarding same.

It is impossible to tell from these entries how many of those

hours were related to Gieseking and Schwartz, whose trial

testimony was severely curtailed, as noted, after the court

refused to allow Migis to elicit testimony from them about sex

discrimination unrelated to pregnancy, such as Pearle’s attitude

toward women generally.

Surely, prior to discovery, Migis’ counsel researched the

admissibility of such general sex discrimination; it is not

probative of pregnancy discrimination. See Todd v. Inn

Development & Management, Inc., 870 F. Supp. 667, 671 n.4 (D.S.C.

1994) (affidavit stating that employer had a consistent pattern

of firing female employees and replacing them with male employees

fails to address issue of pregnancy discrimination). See also

Kelly v. Boeing Petroleum Services, Inc., 61 F.3d 350, 357-58

(5th Cir. 1995) (derogatory remarks about race, sex, and national

origin not probative of discrimination on basis of disability);

E.E.O.C. v. Ackerman, Hood & McQueen, Inc., 956 F.2d 944, 948

- 46 - (10th Cir.) (inquiry is “whether ... employer treats pregnancy or

pregnancy-related conditions differently than other medical

conditions”; thus, appropriate “comparison is ... between

pregnant and nonpregnant workers, not between men and women”),

cert. denied, 506 U.S. 817 (1992); Rauh v. Coyne, 744 F. Supp.

1181, 1183 (D.D.C. 1990) (evidence of racial animus excluded in

case alleging discrimination on basis of sex and marital status).

At trial, each time Migis’ counsel sought to introduce

evidence of general sex discrimination, the magistrate judge

ruled that it was not admissible, absent some case authority that

other gender-related evidence was relevant in a pregnancy

discrimination case. Although counsel stated that he would

provide such authority, it does not appear that he did so. In

any event, as noted, the evidence was not admitted. Yet time

spent on discovery on this area was included in the lodestar.

Where is reason?

Because these tasks did not contribute to the favorable

result on the position elimination claim, the hours devoted to

them are not compensable. Accordingly, the district court

clearly erred by including them in the lodestar. See Hensley,

461 U.S. at 436.

iii.

Along this line, Pearle maintains that, in order to enable

identification of distinct claims, Migis’ counsel’s records do

not adequately describe and disclose the work, and that the court

abused its discretion by not requiring Migis’ counsel to provide

- 47 - more detail. Again, the majority does not address this

contention. Based on my review of the billing records, I agree

that it is difficult to determine the number of hours spent on

each claim. For example, the 9 June 1996 entry is for 10.75

hours for “continued trial preparation, and outline of testimony

for plaintiff, Boswell, Graves, Marshall; lengthy conference with

client, and case walk-through; t/c with B. Jones re exhibits;

research re maternity leave cases”. It is impossible to tell how

much of this time involved outlining the testimony of Boswell and

Marshall, whose testimony, as noted, was relevant only as to

Migis’ unsuccessful claim. Other entries suffer from the same

deficiency. Of course, it is within the district court’s sound

discretion whether additional detail is necessary in order to

accurately determine the number of compensable hours for the

lodestar. However, it is the duty of the party seeking a fee

award to submit evidence supporting the time spent and to

“maintain billing time records in a manner that will enable a

reviewing court to identify distinct claims”. Hensley, 461 U.S.

at 433, 437. Where the documentation is inadequate, the district

court may reduce the fee accordingly. Louisiana Power & Light

Co., 50 F.3d at 324. See also Von Clark v. Butler, 916 F.2d 255,

259 (5th Cir. 1990) (“Absent a reliable record of the time

expended on the prevailing claim, it is within the discretion of

the district court to determine a reasonable number of hours that

should have been expended in pursuing the claim on which the

party prevailed.”).

- 48 - b.

Concerning the evaluation of the Johnson factors in

adjusting the lodestar, Pearle claims, and the majority agrees,

that the magistrate judge failed to give proper weight to the

most critical factor: degree of success obtained. See Farrar,

506 U.S. at 114 (internal quotation marks and citation omitted)

(emphasis added) (“the most critical factor in determining the

reasonableness of a fee award is the degree of success

obtained”). As stated, however, further guidance should be

provided for reconsideration of the lodestar adjustment on

remand. Specifically, the majority addresses neither the

relevance of Migis’ rejection of the settlement offer nor whether

it is appropriate to consider the attorney’s fees incurred by

Pearle.

In pre-trial disclosures and discovery responses, Migis

stated that she sought $25,000 in back pay and $300,000 each in

compensatory and punitive damages. The 1991 amendments to Title

VII provide, however, that the sum of compensatory and punitive

damages shall not exceed $300,000. 42 U.S.C. § 1981a(b)(3). In

any event, at trial, she sought far less: back pay and benefits;

and $50,000 each for compensatory damages (humiliation, loss of

self-esteem, inconvenience, and anguish) and punitive damages.

It hardly bears reminding that she was awarded far, far less than

that: only $7,233.32 in back pay and benefits and $5,000 in

compensatory damages, and no punitive damages. She also sought,

- 49 - and obtained, a declaratory judgment that Pearle engaged in

discriminatory practices.

In that I would hold that Migis is entitled to only nominal

compensatory damages, rather than $5,000, this obviously would

substantially impact her degree of success. Accordingly, I would

hold that, on remand, the district court should reconsider this

degree of success factor after it re-calculated the lodestar (had

my view prevailed, that recalculation would include deducting

time spent on unnecessary tasks and on Migis’ unsuccessful claim,

as discussed supra).

But, my view has not prevailed. The majority remands only

for reconsideration of the degree of success factor. In that

regard, I would offer the following guidance.

Had my view been adopted by the majority, then time spent in

pursuit of Migis’ unsuccessful claim and on other unnecessary

tasks would have been deducted in calculating a new lodestar.

Next, the district court, on considering this degree of success

factor in adjusting that new (recalculated) lodestar, would have

taken into account only the degree of success obtained for the

successful claim, avoiding duplication of the considerations used

to determine the hours reasonably expended when recalculating the

lodestar. See Shipes, 987 F.2d at 320 (“district court must be

careful ... not to double count a Johnson factor already

considered in calculating the lodestar”). The purpose of this

inquiry is to determine whether the (new) lodestar should be

- 50 - adjusted and, if so, how much, in the light of the results

obtained in comparison to the relief sought.

But, again, the majority is not requiring a recalculation of

the lodestar. Therefore, in adjusting it on remand, the district

court is not faced with this double-counting problem.

Accordingly, on remand, the adjustment should be even greater

than it would have been had a new, smaller lodestar been

calculated.

As was the case in Farrar, the outcome of this litigation

affects only the parties. It did not result in a significant

legal pronouncement that will benefit society; instead, it

“accomplished little beyond giving [Migis] the moral satisfaction

of knowing that a federal court concluded that [her] rights had

been violated” and compensating her for a relatively short period

of unemployment. See Farrar, 506 U.S. at 114 (internal quotation

marks and citation omitted). As noted supra, the Supreme Court

has stated that, “[w]here recovery of private damages is the

purpose of ... civil rights litigation, a district court, in

fixing fees, is obligated to give primary consideration to the

amount of damages awarded as compared to the amount sought.” Id.

at 114 (emphasis added). In this regard, and as the magistrate

judge recognized, although Migis testified that a declaration

that Pearle violated the law was equally as important to her as

damages, that fact, standing alone, would not justify an award of

attorney’s fees. See id.; Migis, 944 F. Supp. at 516.

- 51 - Accordingly, primary consideration must be given to a comparison

of the damages amounts sought and received.

Although the magistrate judge acknowledged, pursuant to

Farrar, that the degree of success is the most critical factor in

determining the reasonableness of the fee award, he reduced it by

only ten percent (from $89,687.50 to $80,718.75), despite the

fact that Migis recovered only a fraction of the damages sought.

Accordingly, despite stating that a $90,000 fee “would constitute

the type of windfall repeatedly condemned by [both] the Supreme

Court and” our court, the district court nevertheless concluded,

somehow, that a $81,000 fee would not. Migis, 944 F. Supp. at

516. And, although the district court complied with Farrar’s

directive to consider Migis’ limited success, its opinion does

not explain why such a minor reduction is sufficient to prevent a

windfall. See Louisiana Power & Light Co., 50 F.3d at 330. Its

opinion reflects, however, that the district court may have been

influenced by the settlement amount offered Migis.

The magistrate judge stated that, because Migis received

$12,233.32 in damages, and Pearle never offered more than $10,000

to settle, Migis’ counsel “should not be unduly penalized because

his client pursued a course of action that resulted in a greater

recovery.” Migis, 944 F. Supp. at 516. In that reason and

reasonableness are at stake, I do not understand the district

court’s rationale. Because I believe that Migis should have

recovered only nominal damages for emotional distress, her total

damages would be less than the $10,000 offered four months before

- 52 - trial. In any event, it is quite debatable, at least to me, that

the relatively small amount awarded over the $10,000 is a

“greater recovery”, especially when one considers the greater

price paid in time and money by the parties, counsel, and federal

court system in order for Migis to gain that slight increment.

Again, reasonableness is lost. As mentioned, the majority does

not address the relevance of Migis’ refusal to settle.

In Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332

(4th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 483 (1996),

the Fourth Circuit stated that a court may consider a plaintiff’s

rejection of a settlement offer as one of several factors

affecting its fee award. Id. at 1337. Sheppard was a mixed-

motives case in which the plaintiff proved that pregnancy

discrimination played a part in her discharge, but the employer

established that, absent discrimination, it would have reached

the same decision.

In such cases, Title VII, as amended by the Civil Rights Act

of 1991, provides that the court “may” grant attorney’s fees. 42

U.S.C. § 2000e-5(g)(2)(B). Because this is not a mixed-motives

case, the fee award is governed by § 2000e-5(k), which, as noted

earlier, provides similarly that “the court, in its discretion,

may allow the prevailing party ... a reasonable attorney’s fee

... as part of the costs.” (Emphasis added.)

In that a fee award is discretionary under both provisions,

I see no reason why consideration of settlement offers should not

be the same under both. After all, “where a rejected settlement

- 53 - offer exceeds the ultimate recovery, the plaintiff — although

technically the prevailing party — has not received any monetary

benefits” from her attorney’s post-offer services. See Marek v.

Chesny, 473 U.S. 1, 11 (1985). The same reasoning applies where,

as here, the award is only slightly greater than the offer.

Because I agree with the Fourth Circuit that such consideration

will further Farrar’s concerns about the degree of success

achieved by the plaintiff, I would hold that a court may consider

a plaintiff’s rejection of a settlement offer (as well as a

plaintiff’s settlement demands) as a factor in making the degree

of success and other relevant evaluations for its discretionary,

reasonable fee award.

This action was filed in February 1995; the offer was made

approximately a year later; and trial took place about four

months after that. Migis asserts that the settlement offer was

unreasonable because it was not made until four months before

trial and covered not only her claims, but also attorney’s fees

and costs, and included, as well, non-monetary, prohibitory

matters (such as Migis agreeing never to seek employment with

either Pearle or any affiliated entities in the future). At that

time, the fees, at the later allowed $250 hourly rate (which

seems quite high for this case), would have totaled $30,000, and

the costs exceeded $2,000. Migis concludes, therefore, that the

offer was effectively no offer at all, because it “was less than

one-fourth of the monetary value of the case at the time the

offer was made”. (Emphasis in original.) (The offer having been

- 54 - rejected, the ultimate fee award of $81,000 provided an

additional $51,000 to Migis’ counsel for effort that gained Migis

very little, but gained her counsel a great deal.)

Of course, if the fees of $30,000 are deducted from that

calculation, the settlement offer, at least in monetary terms,

was more than Migis’ lost pay and benefits. At oral argument in

our court, her counsel persisted in including his fees in

calculating the “value” of Migis’ case. Needless to say, counsel

errs by calculating the value of a case, for settlement purposes,

from his, rather than his client’s, perspective. Having entered

into a contingent-fee agreement, the value of his fees, for

settlement purposes, is the percentage of his client’s recovery

that he contracted to accept, not the amount that might be

awarded if the case is not settled. And, again needless to say,

the settlement decision is the client’s.

As discussed, Migis’ fee agreement permits counsel to keep a

fee award if it exceeds 45% of Migis’ maximum recovery. Surely,

both when he took the case, and when the settlement offer was

made, her counsel had good reason to feel that any recovery would

be relatively low: first, as shown, liability vel non was a close

question; second, Migis’ maximum back pay was quantified long

before she filed this action (began working for another at higher

salary approximately two months after last paid by Pearle and

four weeks before action filed); and third, recovery of a large

amount on Migis’ compensatory and punitive damages claims had a

- 55 - small chance of success. Accordingly, it is quite arguable that

this case was fee, not client, driven.

Along this line, one possible scenario would be a hope held

by Migis and/or her counsel that the fee award would exceed 45%

of her recovery; if so, they would both win — she would keep all

of the award and he would have a much larger fee. Surely, the

fee-shifting provision in Title VII was not meant for this.

Where is reason? Where is reasonableness?

Obviously, another possible scenario for pressing forward

with the case, and running up the excessive amount of time and

expenses by Migis’ counsel, was that Migis, acting on, or

against, the advice of counsel, felt that her potential damages

far exceeded the $10,000 offered. This, of course, was Migis’

choice, however ill-advised and costly. She, not her attorney

(but, I assume, based on his counsel), rolled the dice. But,

when you gamble, you win or you lose. And when the client loses,

a contingent fee counsel must lose as well. (Or, at least,

should lose. That is not the case here. Reason has taken a back

seat.)

This is the underlying purpose of Farrar’s focus on the

degree of success: “to prevent a situation in which a client

receives a pyrrhic victory and the lawyers take a pot of gold”.

Sheppard, 88 F.3d at 1339; see also City of Burlington, 505 U.S.

at 563 (federal fee-shifting statutes “were not designed as a

form of economic relief to improve the financial lot of

lawyers”). Therefore, in order to prevent this windfall to

- 56 - counsel, I think the court, on remand, should give considerable

weight to this rejection-of-settlement-offer factor, and,

accordingly, greatly adjust the lodestar downward.

To counter Pearle’s windfall-charge, Migis points out that

Pearle was billed $206,000 in fees and $14,671 in expenses. She

asserts that Pearle’s attorneys’ expenditure of time (1,000

hours) and their fees and expenses (approximately $220,000) are

further evidence that her request and the award were reasonable.

Pearle moved for a protective order against disclosure of

documents and testimony by its counsel regarding such fees, on

the ground that Migis’ attempt to put those fees at issue was

groundless and constituted harassment. Although the record

contains no ruling on this motion, it apparently was denied, at

least in part, in that, at the hearing on the fee application,

Migis’ counsel was permitted to question defense counsel

extensively about the fees charged Pearle.

The district court’s opinion refers also to the fees by

Pearle’s counsel. 944 F. Supp. at 513-14. Because that

reference appears in the section of the opinion rejecting

Pearle’s contention that the number of hours was unreasonable

because this case involved no novel or complex issues, it is

unclear what, if any, effect it had on the district court’s

overall reasonableness determination. The majority refers to the

magistrate judge’s notation that Pearle amassed over $200,000 in

attorney’s fees, but does not discuss whether consideration of

- 57 - those fees is appropriate in determining the reasonableness of

Migis’ fees.

I would hold that Pearle’s counsel’s fees are not relevant

in determining whether Migis’ counsel’s fees are reasonable in

relation to the degree of success obtained. Twenty years ago,

this was explained most adequately by the Seventh Circuit in

Mirabal v. General Motors Acceptance Corp., 576 F.2d 729 (7th

Cir.), cert. denied, 439 U.S. 1039 (1978):

[A] given case may have greater precedential value for one side than the other. Also, a plaintiff’s attorney, by pressing questionable claims and refusing to settle except on outrageous terms, could force a defendant to incur substantial fees which he later uses as a basis for his own fee claim. Moreover, the amount of fees which one side is paid by its client is a matter involving various motivations in an on-going attorney- client relationship and may, therefore, have little relevance to the value which [plaintiff’s attorney] has provided to his clients in a given case.

Id. at 731. See also Samuel v. University of Pittsburgh, 80

F.R.D. 293, 294 (W.D. Pa. 1978) (emphasis added) (“the number of

hours required by opposing counsel to defend a claim has little

relevance to the reasonableness of the number of hours which

plaintiffs’ counsel devoted to pursuing a cause of action on

behalf of a plaintiff in a given case”).

This case certainly appears to be a classic example of “the

tail (attorney’s fees) wagging the dog (the merits)”. Attorneys

serve clients to help (it is assumed) resolve disputes (the

sooner the better); clients and cases don’t exist to serve — much

less, to save — attorneys.

- 58 - It is fervently hoped that, on remand, the re-evaluation of

the Johnson degree of success factor will result in restoring the

proper reality and proportion — will result in restoring reason

and reasonableness — to this case. It is most regrettable that,

first, there will not also be a recalculation of the lodestar.

Migis requests fees of $7,500 for this appeal (30 hours at

$250 per hour, excluding her cross-appeal), an amount that would

exceed the total amount Migis would recover, had the compensatory

damages been reduced from $5,000 to a nominal amount. Although

her counsel was successful (prevailed) in defending on liability,

back pay, compensatory damages, and allowed costs, he was

unsuccessful, to a large extent, as to the attorney’s fee award.

The majority does not address this request. Obviously, an

award of $7,500 would be unreasonable and constitute an

additional windfall to counsel.

2.

Among other allowed costs, Migis was awarded those

associated with five depositions taken in connection with her

unsuccessful not-offered-another-position claim. Migis, 944 F.

Supp. at 517. The district court did not allow witness and

process fees for two witnesses who did not testify at trial,

$170.13 for a copy of Migis’ deposition videotape (the subject of

her cross-appeal), and expenses related to computerized legal

research, courier fees, postage, and photocopying expenses. Id.

at 517-18. Total awarded costs, other than attorney’s fees, were

- 59 - $4,297.32. Id. at 518. “We will reverse ... only on a clear

showing of abuse of discretion.” See Fogleman v. ARAMCO (Arabian

American Oil Co.), 920 F.2d 278, 285 (5th Cir. 1991).

Pearle disputes the award of costs for the pursuit of Migis’

unsuccessful not-offered-another-position claim. The majority

concludes that, “[e]ven assuming that it is feasible to segregate

costs by the two claims Migis prosecuted, Pearle Vision’s refusal

to rehire her in a new position was arguably of evidentiary value

to the claim on which she did prevail -- discrimination in her

termination -- even if the refusal to rehire her was not itself

found to be a separate Title VII violation.” Maj. Op. at 15.

As stated supra, the factual circumstances surrounding

Migis’ successful position-elimination claim and her unsuccessful

not- offered-another-position claim are easily distinguishable

from an evidentiary and preparation standpoint. The decisions

were made at different times by different decision-makers, and

most of the witnesses who testified regarding the unsuccessful

claim offered no testimony that contributed to the success of her

position- elimination claim. Accordingly, for the same reasons

that attorney’s fees for the unsuccessful claim should not have

been awarded, costs associated with pursuing it are not

reasonable and should have been disallowed.

I agree that the district court did not abuse its discretion

by disallowing Migis’ request for $170.13 for her deposition

- 60 - videotape copy. Perhaps, as part of trial preparation, counsel

wanted the tape to observe Migis’ facial expressions, or other

body language, or voice level. But, surely, he was present when

she was deposed and could have made those observations then.

Perhaps counsel wanted it so that Migis could watch it in order

to better prepare to testify. One can only wonder.

But, more importantly, in the light of the small monetary

amount at stake, compared to the cost in judicial resources and

to the parties in resolving this issue, one can also only wonder

— indeed, marvel — why this cross-appeal was taken. At oral

argument, Migis’ counsel stated it was because of the larger

issue — awarding costs for videotapes. But, the larger issue was

not at hand. Obviously, counsel should have saved this question

for when it is at issue; at stake was only a copy of Migis’ (the

plaintiff’s) deposition.

Whatever the reason counsel wanted the copy, the copy was

not necessary. And, to say the least, the cross-appeal is most

inappropriate. (An adage comes to mind: “whenever someone says,

‘it’s not the money, it’s the principle’ ... it’s the money!”)

Accordingly, I would have required Migis’ counsel to show cause

why sanctions should not be imposed.

For the foregoing reasons, I concur in affirming liability,

back pay, and denial of the videotape copy cost; and in reversing

the attorney’s fee and remanding for reconsideration. But, as to

that fee, I would offer far more guidance, especially on the

- 61 - settlement-rejection factor. And, I respectfully dissent from

the affirmance of the compensatory damages, from allowing

attorney’s fees and associated costs for the pursuit of Migis’

unsuccessful not-offered-another-position claim, and from not

requiring the lodestar to be otherwise recalculated on remand to

include only the hours reasonably expended.

We wring our hands and decry the increase in litigation and

attendant costs and other excesses, such as frivolous and

exorbitant claims, and sky-high, unrealistic, and otherwise

unreasonable monetary demands and fees. We bemoan the too often

seen lack of civility and professionalism and ethics, as well as

the pursuit by some lawyers of, not excellence, but numbing

mediocrity, consistent with the heralded “dumbing of America”.

Yet, we seem unable or, worse still, unwilling to do anything

about it. Instead, we ask why we have this lack of both reason

and reasonableness. The answers have been with us from the

beginning; two, among many, come quickly to mind: “power fills a

vacuum”, and “money makes the world go-around”. Reason and

reasonableness can be restored; but, only when we are willing to

do so.

I close as I began. Perhaps this lengthy, back-to-the-

basics analysis will aid in helping spark a new — and much

needed — look at Title VII damages and fee awards. Whatever the

case, of this I am certain: Title VII was not meant to be used

as it has been in this case. It was meant to correct certain

discriminatory wrongs and to provide reasonable compensation to

- 62 - those injured and, when deemed appropriate, their counsel. This

case has gone far, far afield. The result is far from being

reasonable. In fact, it is beyond reason; hence, beyond the law.

- 63 -