Weeks v. Southern Bell Telephone & Telegraph Co.

467 F.2d 95, 4 Fair Empl. Prac. Cas. (BNA) 1255
Court of Appeals for the Fifth Circuit·Decided September 7, 1972·No. No. 72-1075·Published·Cited by 44 cases

Opinions

PER CURIAM:

In this appeal Mrs. Sylvia Roberts asks that the attorney’s fees allowed her by the district court in the amount of $15,000 be increased to $46,800 for her successful representation of the plaintiff-appellant in Weeks v. Southern Bell Telephone and Telegraph Co., 5 Cir. 1969, 408 F.2d 228. A majority of this Court holds that the district court acted well within its judicial discretion in awarding a fee of $15,000 to Mrs. Roberts.

Weeks was a Title VII case. Lorena Weeks was employed by the Southern Bell Telephone Company in Savannah, Georgia. In April 1966 she bid on the job of switchman. For the most part, that job involves turning on and off electric switches — but occasionally a switchman lifts weights in excess of thirty pounds. At that time, Georgia and many other states had “protective legislation” prohibiting the employment of women in occupations requiring the lifting of weights of over thirty pounds. Section 703(e)(1), 42 U.S.C. 2000e-2(e)(1) provides that refusal to employ women “shall not be an unlawful employment practice . . . where sex ... is a bona fide occupational qualification.” Relying on this provision, Southern Bell returned Mrs. Weeks’s bid in a letter stating that the company had “decided not to assign women to this location on a switchman’s job.” 1

Mrs. Weeks, through a court-appointed attorney, William B. Clark, sued the defendant, charging a violation of Title [97] VII. The district court decided in favor of Southern Bell. Mr. Clark withdrew from the ease. Mrs. Weeks then retained Mrs. Sylvia Roberts, a Baton Rouge lawyer experienced in the civil rights field. On appeal, the Court decided that Southern Bell had “not satisfied the burden of proving that the job of switchman is within the bona fide occupational qualification exception . . .” to 42 U.S.C. § 2000e-2(a). The Court reversed on that issue and remanded the case “for determination of appropriate relief under the provisions of 42 U.S.C. § 2000e-5(g)”.

On remand, Judge Alexander A. Lawrence conducted a hearing to determine the appropriate relief. At that time Mrs. Roberts requested a fee of forty dollars an hour plus expenses, to-talling $19,430.42. In addition, she requested $6,000 on the ground that the case was one of first impression. Some months later Judge Lawrence recused himself. Mrs. Roberts then wrote to Chief Judge John R. Brown, requesting that another judge be designated to try the case on remand. Judge Brown designated the Honorable Griffin B. Bell of this Court to hear the case.

Judge Bell held a pre-trial conference and two other conferences, and a full hearing on the issue of attorney’s fees. Partly as a result of those conferences Mrs. Weeks was given the job of switch-man as of the date of her application and the parties entered into a consent decree awarding Mrs. Weeks the full amount of her claim.2

The determination of a reasonable attorney’s fee is left to .the sound discretion of the trial judge. Electronics Capital Corp. v. Sheperd, 5 Cir. 1971, 439 F.2d 692; B-M-G Investment Co. v. Continental Moss Gordin, Inc., 5 Cir. 1971, 437 F.2d 892; Connecticut Importing Co. v. Frankfort Distilleries, 2 Cir. 1939, 101 F.2d 79; Campbell v. Green, 5 Cir. 1940, 112 F.2d 143. An attorney’s fee award of a trial court should not be set aside unless there has been a clear abuse of his discretion. Hoffman v. Aetna Life Ins. Co., 5 Cir. 1969, 411 F.2d 594; Calhoun v. Hertwig, 5 Cir. 1966, 363 F.2d 257, cert. denied, 386 U.S. 966, 87 S.Ct. 1047, 18 L.Ed.2d 116; In Re Long Island Properties, 2 Cir. 1945, 150 F.2d 313. These principles apply in Title VII cases. In Culpepper v. Reynolds Metals Co., 5 Cir. 1971, 442 F.2d 1078, for example, this Court affirmed an attorney’s fee award of $1500, stating:

“ . . . Determination of the reasonableness of attorney’s fees is a matter which is left to the sound discretion of the trial judge. Electronics Capital Corp. v. Sheperd, 5 Cir. 1971, 439 F.2d 692, and cases cited. It cannot be said that this award constituted a clear abuse of discretion. . . .” Id. at 1081.

Thus, it can be seen that the test of the reasonableness of an attorney’s fee award in a Title VII case, as in others, is whether the trial judge acted within sound judicial discretion.

Section 706(k) of the Civil Rights Act of 1964, 42 Ú.S.C. § 2000e-5(k) states that “the court, in its discretion, may allow ... a reasonable attorney’s fee”. (Emphasis added.) The language is not mandatory nor does it imply the requirement of any formula. It is evident to the majority from Judge Bell’s careful opinion as well as from the briefs and the record, that he did not abuse his authority in awarding fees of $16,200: $15,000 to Mrs. Roberts, $1,200 to William B. Clark, trial counsel for Mrs. Weeks in the district court.

Judge Bell reviewed the many factors that are properly taken into consideration in determining a reasonable attorney’s fee and applied his own knowledge, experience, and expertise to determine the dollar amount to be awarded both trial and appellate counsel. See Camp[98] bell v. Green, 5 Cir. 1940, 112 F.2d 143, where we stated:

“. . . The court ... is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of testimony of witnesses as to value.” Id. at 144.

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Weeks v. Southern Bell Telephone & Telegraph Co., 467 F.2d 95, 4 Fair Empl. Prac. Cas. (BNA) 1255 (5th Cir. 1972).

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