Myra Furcron v. Mail Centers Plys, LLC

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 3, 2021
• Docket: 20-11759
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11759 Non-Argument Calendar ________________________

D.C. Docket No. 1:14-cv-01188-RWS

MYRA FURCRON,

Plaintiff-Appellee,

versus

MAIL CENTERS PLUS, LLC,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

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Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

Mail Centers Plus, LLC (MCP) appeals the district court’s order awarding

attorney’s fees to Myra Furcron, a plaintiff in an action alleging sexual harassment

under the Civil Rights Act of 1964 (Title VII). A jury found MCP liable under

Title VII but declined to award damages. The district court then granted Furcron’s

post-trial motion for equitable relief and her motion for attorney’s fees. On appeal,

we vacated in part the grant of equitable relief. Having modified the equitable

relief, we also remanded the award of attorney’s fees for the district court to

determine whether MCP’s $20,000 offer of judgment—made early in the

litigation—was more favorable than the remaining relief. If so, Furcron would not

be entitled to attorney’s fees. The district court again awarded attorney’s fees,

holding that Furcron had obtained an outcome that was more favorable than the

offer of judgment. MCP argues that the district court erred because the remaining

equitable relief was either unenforceable or had a de minimis value. It also argues

that the district court erred in failing to adjust the award of attorney’s fees to

account for the part of the relief that had been vacated. After careful review, we

affirm.

I. BACKGROUND

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This case has a lengthy procedural history and factual background. We

recount only what is relevant to this appeal.

A. Initial District Court Proceedings and First Remand

In 2008, Myra Furcron began working for MCP as a mailroom clerk. MCP

transferred Furcron in 2010 to work as a distribution clerk onsite at the Coca-Cola

Company in the receiving dock department. Furcron alleged that during the time

she worked as a distribution clerk, another MCP employee sexually harassed her,

and that after she complained, MCP retaliated by terminating her employment.

Furcron filed suit in state court, alleging that: (1) an MCP employee’s sexual

harassment created a hostile work environment, in violation of her rights under

Title VII; and (2) MCP retaliated against her when she opposed the harassment, in

violation of her rights under Title VII. MCP removed the action to federal court.

In September 2014, after discovery had commenced, MCP filed a Rule 68

offer of judgment with the district court in which it offered Furcron $20,000 in

satisfaction of all liability, including costs and attorney’s fees. Furcron did not

accept the offer. Then, in September 2015, the district court granted MCP

summary judgment as to both of Furcron’s claims. On appeal, we affirmed the

grant of summary judgment on the retaliation claim but vacated and remanded on

the sexual harassment claim. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295,

1315 (11th Cir. 2016).

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The sexual harassment claim proceeded to trial in February 2018. After

trial, the jury found that an MCP employee harassed Furcron because of her

gender, the harassment created a hostile work environment, Furcron’s supervisor

knew or should have known of the hostile work environment, and Furcron’s

supervisor failed to take prompt remedial action to eliminate the hostile work

environment. While the jury found that Furcron had suffered damages because of

the hostile work environment, it did not award monetary relief for her emotional

pain and mental anguish. Judgment was entered for Furcron.

Furcron filed post-trial motions, including motions for a new trial on

damages, for equitable relief, and for attorney’s fees. The district court denied

Furcron’s motion for a new trial. It granted in part and denied in part her motion

for equitable relief. Specifically, the district court ordered MCP to (1) place a copy

of the verdict in Furcron’s personnel file if MCP included documents relating to

Furcron’s termination in her personnel file; and (2) to re-train its management on

Title VII compliance. And the district court granted Furcron’s motion for

attorney’s fees and expenses, determining that she was the prevailing party and that

she was entitled to $279,490 in attorney’s fees and $5,506.56 in costs. 1

1 This figure was based on the hourly rates provided by Furcron, multiplied by the total number of hours provided by Furcron. The hours were reduced by 30% to account for the work performed before the dismissal of the retaliation claim was affirmed on appeal and by 20% for the work performed after that time, except for time spent on the fee petition. 4 USCA11 Case: 20-11759 Date Filed: 03/03/2021 Page: 5 of 12

B. Furcron I and II: Decisions on Appeal Regarding Equitable Relief and Attorney’s Fees

MCP appealed the district court’s order of equitable relief. We vacated the

order to the extent that it required MCP to implement Title VII training. But we

affirmed the order “to the extent that it require[d] MCP to include a copy of the

complaint and verdict in Furcron’s personnel file.” Furcron v. Mail Centers Plus,

LLC, 774 Fed. App’x 592, 596 (11th Cir. 2019) (per curiam) (Furcron I).

Separately, MCP appealed the district court’s order awarding attorney’s fees.

MCP argued “that the district court abused its discretion by granting Furcron’s

motion for attorneys’ fees because Furcron declined MCP’s $20,000 offer of

judgment early in the litigation, and then failed to obtain an outcome that was more

favorable than that offer.” Furcron v. Mail Centers Plus, LLC, 776 Fed. App’x

622, 623 (11th Cir. 2019) (per curiam) (Furcron II). We vacated the district

court’s order awarding attorney’s fees, reasoning that when the district court

determined that Furcron’s equitable relief was more favorable than MCP’s Rule 68

offer, it had relied in part on the existence of the Title VII training injunction.

Because we vacated that relief in Furcron I, remand was appropriate to allow the

district court to consider whether the remaining relief was more favorable than

MCP’s Rule 68 offer of judgment of $20,000.

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C. Proceedings after Furcron I and II

On remand, the district court determined that the remaining relief was more

favorable than MCP’s Rule 68 offer of $20,000. It found that the fees and costs

Furcron had accrued at the time of the offer exceeded $20,000. Second, it

determined that, even though the value of the equitable relief was difficult to

quantify, it had more than a de minimis value because it provided Furcron with

peace of mind as to her personnel records. The district court further reasoned that

MCP’s characterization of itself as a victim post-trial showed a disregard for the

gravity of the jury’s findings, thus reinforcing the importance of the equitable relief

granted. Because the district court concluded that the remaining relief was more

favorable than MCP’s Rule 68 offer of $20,000, the court concluded that Furcron

was entitled to $284,996.56 in attorney’s fees and costs as previously ordered.

This appeal followed.

II. STANDARD OF REVIEW

We review de novo the district court’s interpretation of Federal Rule of Civil

Procedure 68. Util. Automation 2000, Inc. v. Choctawhatchee Elec. Co-op., Inc.,

298 F.3d 1238, 1240 (11th Cir. 2002). And we review an award of attorney’s fees

in a Title VII action for abuse of discretion. Bonner v. Mobile Energy Servs. Co.,

246 F.3d 1303, 1304 (11th Cir. 2001) (per curiam).

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III. DISCUSSION

On appeal, MCP argues that the district court erred in granting Furcron

attorney’s fees as a prevailing party for three reasons. First, the equitable relief

awarded was unavailable to Furcron, rendering it valueless and moot. Therefore,

the equitable relief did not make Furcron a prevailing party, nor is it more

favorable than the offer of judgment. Second, even if the equitable relief had some

value, it was de minimis. And the district court did not adequately analyze

Furcron’s new degree of success based on the remaining equitable relief. Third,

the district court improperly assessed attorney’s fees against MCP as a deterrent.

We begin with the question of whether Furcron is a prevailing party. In a

Title VII action, the district court may allow the “prevailing party” to recover a

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

question of whether a party is the “prevailing” party centers on whether there has

been a “material alteration of the legal relationship of the parties.” CRST Van

Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642, 1646 (2016). A plaintiff can become

a prevailing party by obtaining either monetary or equitable relief. Canup v.

Chipman-Union, Inc., 123 F.3d 1440, 1442 (11th Cir. 1997).

MCP argues that “the relationship between the parties was not altered

because no equitable relief was available to be awarded to Plaintiff.” The reason,

MCP argues, is that the district court’s order to place a copy of the verdict in

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Furcron’s personnel file included a condition precedent: the relief was required

only if other documents referencing Furcron’s termination were included in her

personnel file. MCP argues that this condition precedent has not been met, and

that “Plaintiff’s personnel file is no longer available as it was destroyed based on

MCP’s retention policy.”

Furcron counters that, under the “law of the case” doctrine, MCP waived

this argument in Furcron I. The law of the case doctrine provides that “previously

decided” issues—findings of fact and conclusions of law made by an appellate

court—are generally binding in subsequent proceedings in the same case. Luckey

v. Miller, 929 F.2d 618, 621 (11th Cir. 1991). An extension of this rule is that

when a party waives a legal argument in an earlier appeal, it waives the right to

raise that argument in a later appeal. See United States v. Escobar-Urrego, 110

F.3d 1556, 1560 (11th Cir. 1997).

That is what happened here. MCP made essentially the same argument that

it now makes—that the condition precedent renders Furcron’s equitable relief

unavailable—for the first time in its reply brief in Furcron I. 2 See Sapuppo v.

2 In its reply brief in Furcron I, MCP argued that “Plaintiff’s requested equitable relief is unavailable,” reasoning in part that: [T]he district court limited this relief, i.e. inclusion of the verdict is only required if her personnel file includes documents that reference her termination. MCP has not included the verdict in Plaintiff’s personnel file because it does not contain documents that reference her termination. Therefore, the relief that Plaintiff has requested, 8 USCA11 Case: 20-11759 Date Filed: 03/03/2021 Page: 9 of 12

Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014) (holding that a

party abandons an issue by raising it for the first time in its reply brief). Therefore,

we agree with Furcron that MCP waived this argument in Furcron I, where we

affirmed the district court’s order “to the extent that it requires MCP to include a

copy of the complaint and verdict in Furcron’s personnel file.” Furcron I, 774

Fed. App’x at 596. We explained that “[t]he court was entitled to fashion the

‘most complete relief possible,’ and Furcron would benefit from having those

documents included in her file to provide the full context of her employment.” Id.

at 596–97. Any facts that may have since developed, including the destruction of

Furcron’s personnel file, are immaterial to whether Furcron is a prevailing party

for the purposes of attorney’s fees. See Thomas v. Bryant, 614 F.3d 1288, 1294

(11th Cir. 2010) (explaining that an intervening event that renders the case moot

does not strip plaintiffs of prevailing party status for the purposes of attorney’s

fees).

Having obtained equitable relief against MCP that benefitted her at the time

of the judgment, Furcron became a prevailing party. And the district court could,

therefore, award her attorney’s fees, unless MCP’s Rule 68 offer was more

which the district court did not specifically grant, has not been executed. 9 USCA11 Case: 20-11759 Date Filed: 03/03/2021 Page: 10 of 12

favorable than the relief that she received. See 42 U.S.C. § 2000e-5(k); Fed. R.

Civ. P. 68(d).

Rule 68 provides that a party that is defending a claim may serve an

opposing party with an offer to allow judgment on specified terms, with the costs

accrued up to that point. Fed. R. Civ. P. 68(a). If the served party does not accept

the offer and the judgment that she ultimately receives “is not more favorable” than

the offer, she must pay the costs incurred after the offer was made, and she may

not recover her own costs if the offer was reasonable. Id. 68(d); Delta Air Lines,

Inc. v. August, 450 U.S. 346, 356 (1981). However, costs incurred prior to a Rule

68 offer should be added to damages awarded to determine whether the ultimate

recovery was more favorable than the offer. Marek v. Chesny, 473 U.S. 1, 9

(1985).

Here, the district court determined that “[t]he accrued fees and costs of

Plaintiff at the time Defendant made its offer exceeded $20,000.” Therefore, based

on her pre-offer costs alone, the offer of judgment does not prevent Furcron from

collecting fees, regardless of the specific value assigned to the equitable relief.

Next, we address MCP’s argument that the district court did not adequately

review Furcron’s degree of success, in light of the existing equitable relief. “[T]he

court’s ‘central’ responsibility [is] to ‘make the assessment of what is a reasonable

fee under the circumstances of the case.’” Farrar v. Hobby, 506 U.S. 103, 114–

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115 (1992). MCP correctly notes that the plaintiff’s degree of success is “the most

critical factor in determining the reasonableness of an attorney’s fee award.” Gray

ex rel. Alexander v. Bostic, 720 F.3d 887, 894 (11th Cir. 2013). And the “court

may reduce a[n] . . . award when the degree of success obtained is limited, even

when a plaintiff obtains a favorable jury verdict.” Villano v. City of Boynton

Beach, 254 F.3d 1302, 1306 (11th Cir. 2001).

Therefore, in light of our decision in Furcron I, the district court might have

determined that Furcron’s degree of success merited a reduced award. However,

the district court did not abuse its discretion by awarding the same amount of fees

on remand. The district court referenced its prior order awarding attorney’s fees,

where it addressed Furcron’s degree of success, reducing the award by 30% for the

work performed before we affirmed the dismissal of the retaliation claim and by

20% for the work performed thereafter, except for time spent on the fee petition.

Further, the district court emphasized the importance of the existing equitable

relief Furcron obtained. While the district court could have reduced the award in

light of the existing equitable relief, it was not required to do so. Accordingly, we

do not find that the district court abused its discretion by awarding attorney’s fees

that were unreasonable under the circumstances of this case. See Farrar, 506 U.S.

at 115.

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Finally, we address MCP’s argument that the district court improperly

awarded attorney’s fees to deter “employers from defending themselves in cases

where they have a good faith belief that they did not violate an employee’s rights.”

MCP points to language in the district court’s order where the court stressed that

MCP did not seem to appreciate the gravity of the jury’s findings, and that MCP

“may wish to voluntarily consider reevaluating its approach to the issue of sexual

harassment.”

It is true that in the context of a 42 U.S.C. § 1988 action where the plaintiff

was awarded nominal damages, we have determined that the district court abused

its discretion in awarding attorney’s fees to the plaintiff because, in part, it

expressly ordered the fees to serve as a deterrent. Gray, 720 F.3d at 899. But here,

although the district court expressed disapproval at MCP’s conduct, it did so in the

context of emphasizing the importance of Furcron’s equitable relief—it did not

state that it was awarding attorney’s fees to serve as a deterrent. Accordingly, we

affirm the district court’s order awarding attorney’s fees.

AFFIRMED.