Canup v. Chipman-Union, Inc.

• Decision Date: 08 October 1997
• Docket Number: CHIPMAN-UNIO,INC,No. 96-9248,96-9248
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 220, 72 Empl. Prac. Dec. P 45,075, 11 Fla. L. Weekly Fed. C 617 Johnny R. CANUP, Plaintiff-Appellant, v., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1440

123 F.3d 1440

75 Fair Empl.Prac.Cas. (BNA) 220,

72 Empl. Prac. Dec. P 45,075,

11 Fla. L. Weekly Fed. C 617

Johnny R. CANUP, Plaintiff-Appellant, v. CHIPMAN-UNION, INC., Defendant-Appellee.

No. 96-9248.

United States Court of Appeals, Eleventh Circuit.

Oct. 8, 1997.

Catherine F. Duclos, James E. Rollins, Jr., Karin L. Allen, Atlanta, GA, for Plaintiff-Appellant.

David C. Hagaman, John L. Monroe, Jr., Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before CARNES, Circuit Judge, and HENDERSON and GIBSON ^*, Senior Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge:

A jury determined that Chipman-Union Incorporated ("CUI") unlawfully considered Johnny Canup's race in its decision to terminate Canup's employment, but that CUI would have terminated him even if his race had not been considered. After entering judgment in Canup's favor, the District Court ¹ decided not to award Canup any of his attorney fees and awarded him only $6,768.43 of the $12,553.20 in costs he requested. Canup appeals that portion of the District Court's order that denied his claim for attorney fees, and we affirm.

I. BACKGROUND

Although the jury's verdict is not an issue on appeal, a general understanding of the facts is important to the issue that has been raised. Canup, a white male, was employed by CUI and held the position of Finishing Supervisor. As a supervisor, Canup's conduct was governed by, among other materials, a Supervisor's Manual. Section G of the Supervisor's Manual is captioned "Good Moral Behavior" and states in part as follows:

Chipman-Union also expects its supervisors to be faithful in the marriage relationships [sic]. A bad example is set by a supervisor who engages in an adulterous relationship. To do so leads to a loss of respect from the employees of the supervisor's department. Personal conduct that affects the performances of the department is the Company's concern.

Canup was aware of this prohibition. Nonetheless, he began having an extramarital affair with a subordinate, Theresa Hubbard; both Canup and Theresa were married at the time, and Theresa's husband, Kevin, was Canup's friend.

Kevin discovered the affair in May 1993 and attempted suicide; the attempt failed. Kevin threatened to kill Canup, and Kevin's father also threatened Canup's life. After learning of these death threats, Canup notified his managers about both his affair and the threats. John Osborne (Vice President of Manufacturing) and the company president discussed the matter and decided to terminate Canup's employment. At the time of these discussions, CUI was in the midst of a union campaign. A black supervisor had been terminated recently, ² and there was some concern that failure to terminate Canup's employment might create a racial issue in the union negotiations. Consequently, although firing Canup was not a desirous outcome, Osborne and the president felt that the best thing to do was to act consistently with past practice and terminate Canup's employment.

Canup brought suit, alleging seven causes of action: race discrimination, retaliation, tortious interference with contracts, bad faith and "stubborn litigiousness," defamation, and invasion of privacy. The case ultimately went to trial on only Count I of the complaint, with Canup requesting damages for lost wages in the amount of $590,000 and additional unspecified amounts for compensatory and punitive damages. Following trial, the jury found that Canup's race was a factor in CUI's decision to terminate his employment, but that CUI would have terminated Canup for his violation of company policy even if Canup's race had not been considered. This resulted in a verdict in Canup's favor, but by operation of law entitled him to recover no damages.

Canup then filed a motion for attorney fees and costs, requesting fees in the amount of $110,779.50 and costs in the amount of $12,553.20. The District Court concluded that the appropriate amount of fees in this case would be no fees at all. The District Court did award costs in the amount of $6,768.43; this aspect of the award is not appealed by either party.

II. DISCUSSION

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court held that in Title VII cases, once the plaintiff establishes an impermissible factor played a motivating part in an employment decision, "the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the [impermissible factor] into account." 490 U.S. at 258, 109 S.Ct. at 1795. In response, Congress passed the 1991 Civil Rights Act which, inter alia, altered the effect of a finding of liability under this subset of mixed motive cases. Now, "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m) (1994). However, if a defendant in such a case can also prove that it

would have taken the same action in the absence of the impermissible motivating factor, the court--

(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described [elsewhere in this statute].

42 U.S.C. § 2000e-5(g)(2)(B) (emphasis supplied). The combined effect of these amendments creates two possible outcomes in mixed motive cases: (1) the plaintiff prevails if he or she proves that an improper motive was a factor in the employment decision, but (2) the defendant can limit its liability if it can prove that it would have made the same decision even if the improper factor had not been considered. Cf. Harris v. Shelby County Bd. of Educ., 99 F.3d 1078, 1084-85 (11th Cir.1996). In those mixed motive cases in which the defendant fails to prove that the same employment decision would have been made, 42 U.S.C.2000e-5(k) applies and provides that a "prevailing party" can recover "a reasonable attorney's fee (including expert fees) as part of the costs."

Canup acknowledges that we review the District Court's decision to deny attorney fees for abuse of discretion. See Turner v. Sungard Bus. Sys., Inc., 91 F.3d 1418, 1422 (11th Cir.1996). However, Canup contends that the District Court considered improper factors in deciding to deny his fee request; this is a legal issue that we review de novo. See Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir.1994).

Canup first argues that § 2000e-5(g)(2)(B) establishes a presumption in favor of fees because he proved that CUI considered his race when deciding to terminate him, even though he would have been terminated in any event. We disagree. First, the statute suggests the contrary: § 2000e-5(g)(2)(B) uses permissive language ("may grant") when discussing attorney fees, but uses mandatory language ("shall not award") when discussing other forms of relief. The proximity of these two phrases in the same statute is telling: had Congress wanted to require attorney fee awards, it could have done so when it drafted other, mandatory language regarding remedies. See Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1338 (4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 483, 136 L.Ed.2d 377 (1996).

Canup also finds supports in § 2000e-5(k), which provides for attorney fees to the "prevailing party" in other Title VII cases. Canup contends that he would have been considered a "prevailing party" under § 2000e-5(k), and he therefore should be entitled to fees. However, Canup would not fare well under § 2000e-5(k). Recovery of fees under that provision initially depends upon achieving a favorable result--be it monetary or equitable relief--that alters the relationship between the parties. E.g., Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992) ("[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim.... Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement."); see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Canup received nothing more than a judgment; no monetary or equitable relief was obtained. This case is thus very similar to Walker v. Anderson Elec. Connectors, 944 F.2d 841 (11th Cir.1991), cert. denied, 506 U.S. 1078, 113 S.Ct. 1043, 122 L.Ed.2d 352 (1993). There, the plaintiff proved that she had been subjected to sexual harassment, but the jury did not award any damages. (There was no instruction regarding nominal damages, so not even a dollar was awarded to the plaintiff.). We rejected the plaintiff's argument that the favorable jury verdict, standing alone, entitled her to an award of fees. Walker, 944 F.2d at 847. Canup has not achieved as much, and perhaps has achieved less, than the plaintiff in Walker, and would not be entitled to fees under § 2000e-5(k). Cf. Farrar, 506 U.S. at 114-16, 113 S.Ct. at 574-576 (affirming denial of attorney fees for plaintiff who proved violation of his constitutional rights but recovered only nominal damages). Thus, to the extent that § 2000e-5(k) (and other fee shifting statutes) provide guidance, Canup's failure to obtain any real relief deprives him of any right to recover attorney fees. ³

Canup acknowledges that he recovered no damages, but contends recovery of damages should not be an important consideration because Congress has decreed that damages are not available. He suggests a different analysis for considering fee requests und...