Cullens v. Georgia Dept. of Transp.

• Decision Date: 25 August 1994
• Docket Number: No. 93-8570,93-8570
• Parties: Bennie CULLENS, James Gonder, Larry Cooper, Plaintiffs-Appellants, v. GEORGIA DEPARTMENT OF TRANSPORTATION, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1489

29 F.3d 1489

Bennie CULLENS, James Gonder, Larry Cooper, Plaintiffs-Appellants, v. GEORGIA DEPARTMENT OF TRANSPORTATION, et al., Defendants-Appellees.

No. 93-8570.

United States Court of Appeals, Eleventh Circuit.

Aug. 25, 1994.

John R. Myer, Robert H. Stroup, Atlanta, GA, for appellants.

Paula Bruner, E.E.O.C., Washington, DC, for amicus curiae E.E.O.C.

John A. Draughon, Michelle W. Johnson, Sell and Melton, Macon, GA, for appellees.

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

Before EDMONDSON, Circuit Judge, GODBOLD and JOHNSON, Senior Circuit Judges.

GODBOLD, Senior Circuit Judge:

This is an attorney's fee appeal in an employment discrimination case. Plaintiffs prevailed on some of their individual claims and were awarded fees for work on those claims, but they were denied class action status and denied fees relating to class claims. We affirm the decision awarding fees based on the individual claims but vacate the award and remand for reconsideration, under proper standards, of the amount of that award. We affirm the denial of fees for class action claims.

I. Facts

In April 1974 the Equal Employment Opportunity Commission charged ten or more Georgia state agencies, including the Georgia Department of Transportation, with discrimination in employment practices. The official investigation went on until 1975. EEOC issued a determination of discrimination in January 1981. In September 1981 EEOC referred the matter to the Department of Justice.

The present suit was filed in the Middle District of Georgia in April 1981 by private plaintiffs against the Department of Transportation ("DOT"), its Commissioner, Thomas D. Moreland, the Georgia State Merit System of Personnel Administration, its Commissioner, Charles E. Storm, and the State of Georgia. Named plaintiffs were Bennie Cullens, James Gonder, and Larry Cooper, Afro-American employees of DOT. They alleged racial discrimination in hiring, promotions, and job assignments, against them individually and against a class comprised of Afro-American employees of DOT and rejected Afro-American applicants for employment with DOT, all in violation of the Civil Rights Act, 42 U.S.C. Secs. 1981 and 1983.

A flurry of briefs and motions ensued on the class action claims. Defendants sought to have them dismissed. In October 1981 plaintiffs moved to have the class certified, while defendants opposed. In February 1982 plaintiffs moved to sever the class claims, which defendants opposed. Sparring in briefs over class certification was still going on in April 1985.

From 1982 to 1985 Justice continued its investigation and narrowed it to four agencies including DOT. It gathered substantial information. It received statistical data and other evidentiary material from counsel for plaintiffs. Counsel for plaintiffs negotiated with DOT concerning settlement of class issues asserted in the present case.

Justice found probable cause to believe that DOT had engaged in a policy or practice of discrimination against blacks and women. It then engaged in negotiations with DOT for a consent settlement to dispose of the EEOC charges. Under the general provisions of the proposed agreement the defendants to the Justice suit and their officials and agents were enjoined and restrained from engaging in discriminatory employment practices. Plaintiffs submitted to the Attorney General of Georgia sweeping proposals of their own that were not covered in the proposed DOT/Justice settlement and that they contended should be included. It appeared that the proposed consent decree would not be modified to accommodate plaintiffs' desires.

Justice and DOT signed the agreement, which included relief on claims of class-based discrimination that fell within the class claims alleged in plaintiffs' complaint. The agreement was implemented in a suit filed in August 1984 by the Justice Department in N.D.Ga. against the State of Georgia, DOT, and the Georgia State Merit System. Justice moved to approve the agreement. Plaintiffs moved to intervene and objected to approval. Later, they moved to have part of the agreement approved and moved unsuccessfully to have the case transferred to the Middle District of Georgia where the instant case was pending.

By April 1985 the 11th Circuit had entered an order that assigned to handle the present case the judge handling the Justice case. In that month the judge denied the motion of plaintiffs to intervene in the Justice case. Two months later he approved the consent agreement and made it the order of the court. In August 1985 he denied class certification to plaintiffs in the present case because the proposed class did not meet the commonality and typicality requirements of Fed.R.Civ.P. 23(a). The plaintiffs then went forward with their individual claims.

After trial the only claims surviving were: (1) a claim by Gonder that he should have been promoted to Skilled Laborer on or after May 1, 1980; (2) a claim by Cooper that he improperly received two written reprimands and one verbal reprimand for attendance problems; (3) a claim by Cullens that he should have been promoted to Laborer II on or after April 1, 1978, to Equipment Operator I on or after January 1, 1979, and/or to Skilled Laborer on or after January 1, 1979; and (4) a claim that Cullens and Gonder were denied training. Other claims had been dismissed before or during trial. ¹

Of the claims presented for decision after trial Gonder prevailed on his claim of discrimination in promotion and was awarded $5,384.93 in back pay and a salary step increase worth $900 annually that became effective April 1, 1988. Cullens partially prevailed on his promotion claim and was awarded $1,922.46 in back pay. On Cooper's claim of disparate discipline the court found for defendants.

Plaintiffs filed a motion for attorney's fees for time expended on the individual claims and on class claims. The district court denied the fee request for time expended on the class issues and ordered resubmission of the fee request for the individual claims, by an order filed March 4, 1991. Upon resubmission of the request for the individual claims, in an order filed April 2, 1993, 827 F.Supp. 756, the district court granted attorney's fees in the amount of $36,471 for time spent in litigation of the individual claims pursuant to 42 U.S.C. Sec. 2000e-5(k). Plaintiffs appeal from both orders.

We turn first to the order granting the attorneys' fees for the individual claims. We review the district court's award of attorney's fee for an abuse of discretion. Resolution Trust Corp. v. Town of Highland Beach, 18 F.3d 1536, 1554 (11th Cir.1994) (citing Popham v. City of Kennesaw, 820 F.2d 1570, 1581 (11th Cir.1987)).

II. Use of a multiplier of damages in calculating a fee

42 U.S.C. Sec. 2000e-5(k) provides in relevant part:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee ... as a part of the costs....

Plaintiffs requested $116,375 in attorney's fees, $1,365 in paralegal fees, and $5,703.04 for costs. The district court awarded $36,471 in attorney's fees, $1,365 in paralegal fees, and $2,089.33 for costs.

The controlling case on the proper standard for setting a fee award where the plaintiff has achieved only limited success is Hensley v. Eckerhart, 461 U.S. 424, 431, 103 S.Ct. 1933, 1938, 76 L.Ed.2d 40 (1983). In that case the Supreme Court "clarif[ied] the proper relationship of the results obtained to an award of attorney's fees." Id. at 432, 103 S.Ct. at 1939 (footnote omitted). It explained that "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. at 433, 103 S.Ct. at 1939. This lodestar "provides an objective basis on which to make an initial estimate of the value of a lawyer's services." Id.; see also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986). "The product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the 'results obtained.' " Hensley, 461 U.S. at 434, 103 S.Ct. at 1940 (footnote omitted). "[W]here the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained." Id. at 440, 103 S.Ct. at 1943; see also Norman v. Housing Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir.1988).

The district court arrived at a lodestar of $57,307 ² by computing the reasonable hourly rate as $100 per hour and the reasonable number of hours spent on litigation of the individual claims as 573.045. The court found the results obtained to be small. That finding is not erroneous. It noted that "the unsuccessful individual claims clearly outnumbered the successful ones and the monetary award [was small] in absolute terms." It departed downward from its lodestar figure of $57,307 to award a fee of $36,471. It arrived at this figure by calculating the present value of plaintiffs' recovery as $12,157 and trebling this figure to reach the fee award of $36,471. The court said:

A trebling of the small recovery would serve as a good measure of a fee that is reasonable under the circumstances in cases where the lodestar calculated under Hensley and progeny have tended to produce excessive amounts. If prospective equitable relief were obtained, a higher multiple might be appropriate. This approach proportions fees to results obtained, excludes compensation for issues raised unsuccessfully, and provides a fair incentive for lawyers to take even small cases, while bringing some economic reality to the...