Caban-Wheeler v. Elsea
| Citation | 71 F.3d 837 |
| Decision Date | 04 January 1996 |
| Docket Number | P,No. 93-8791,CABAN-WHEELE,93-8791 |
| Parties | 69 Fair Empl.Prac.Cas. (BNA) 1193 Alicialaintiff-Appellee-Cross-Appellant, v. William ELSEA, M.D., Fulton County Health Department, et al., Fulton County Personnel Board, Dr. Robert H. Brisbane, Ellinor Dye; Herbert Mabry and Charles Cherry, Defendants-Appellants-Cross-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Paula A. Morgan, Vivian M. Haight, Susan M. Hartwig, Office of the County Attorney, Atlanta, GA, Pickens Andrew Patterson, Jr. Thomas Kennedy Sampson & Patterson, Atlanta, GA, Susan Barker Forsling, Elizabeth Ehlers Long, Office of Fulton County Attorney, Atlanta, GA, Franklin Biggins, Fulton Co. Attorney's Office, Atlanta, GA, for appellants.
William F. Rucker, Pine Lake, GA, John Charles Butters, Atlanta, GA, for appellee.
Appeals from the United States District Court for the Northern District of Georgia.
Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit Judge.
This appeal arises from a jury verdict in favor of the plaintiff under 42 U.S.C. Sec. 1983. The cross-appeal arises from a verdict for the defendants after a bench trial on a claim for relief under Title VII of the Equal Employment Opportunity Act, 42 U.S.C. Sec. 2000e et. seq. The plaintiff also cross-appeals the amount the District Court awarded for attorney's fees under the successful Sec. 1983 claim. We AFFIRM the District Court's rulings on both claims, and REVERSE and REMAND only for a recalculation of attorney's fees.
Dr. Caban-Wheeler, a White Hispanic female, was fired by the Fulton County Health Department. She then brought a civil rights action against various Fulton County departments and employees based on national origin or race discrimination, and violation of her due process rights. The District Court ruled for the defendants on all claims, and Ms. Caban-Wheeler appealed. This Court reversed and remanded, holding that the "numerous suspicious discriminatory circumstances in this case demand a retrial and re-examination of all issues." Caban-Wheeler v. Elsea, 904 F.2d 1549, 1558 (11th Cir.1990). On remand, the Sec. 1983 claim was tried to a jury, and afterward the Title VII claim was tried by the court. The jury found for Caban-Wheeler on her procedural due process claim, and awarded $100,000 in punitive damages. The jury awarded no compensatory or nominal damages, but the court later ordered that one dollar in nominal damages be added to the verdict. The judge found for the defendants on the Title VII claim.
The defendants appeal the jury verdict, raising seven issues: 1) whether plaintiff's claim fails to rise to the level of a procedural due process violation, 2) whether the District Court erred in allowing plaintiff to amend her complaint to add a claim under Sec. 1983, 3) whether the District Court erred in altering the judgment to add nominal damages, 4) whether the District Court erred in awarding attorney's fees under 42 U.S.C. Sec. 1988, 5) whether the District Court erred in ruling that Robert Brisbane, Herbert Mabry, Ellinor Dye, and Charles Cherry were not entitled to judicial immunity, 6) whether William Elsea, Robert Brisbane, Ellinor Dye, Herbert Mabry, and Charles Cherry are entitled to qualified immunity, and 7) whether the District Court erred in ruling that the plaintiff presented sufficient evidence for the jury to award punitive damages.
The plaintiff cross-appealed, raising four issues: 1) whether the District Court in the Title VII case improperly discounted Plaintiff's direct evidence of discrimination, 2) whether the District Court in the Title VII case adequately complied with this Court's mandate from the prior appeal and adequately deferred to the jury's findings from the Sec. 1983 claim, 3) whether the District Court erred in not allowing Caban-Wheeler to present evidence regarding the race of her replacement, and 4) whether the District Court erred in calculating attorney's fees.
In McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995), the Eleventh Circuit Court of Appeals held that even where an employee suffers a procedural deprivation during a termination hearing, that employee has not suffered a violation of her procedural due process rights unless the state refuses to "make available a means to remedy the deprivation." Id. at 1563. The defendants in this case argue that Caban-Wheeler did not take her claim to state court, and thus under McKinney, she suffered no violation of her procedural due process rights; the state of Georgia provides an available and adequate state law remedy for the alleged wrongful termination procedure.
It may be true that under McKinney Caban-Wheeler suffered no violation of her procedural due process rights; however, the defendants failed to raise this issue in the District Court. While the decision in McKinney involved a change in the law that is to be applied retroactively, Id. at 1566, appellate courts generally will not consider an issue first raised on appeal, FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir.1993).
In Narey v. Dean, 32 F.3d 1521 (11th Cir.1994), the court chose to exercise its discretion to consider the McKinney issue even though the defendants failed to raise that issue until after trial. The court in Narey chose to exercise its discretion because after McKinney the proper resolution of the issue was beyond any doubt. Id. at 1527. We choose not to exercise our discretion to hear an issue first raised on appeal because we believe the jury verdict did not result in a miscarriage of justice in light of the numerous suspicious discriminatory circumstances in this case and because the availability of a state court remedy was not developed in the trial court. 1
When Caban-Wheeler moved to amend her complaint to add a Sec. 1983 claim for violation of her due process rights, the defendants argued that the motion should be denied because the statute of limitations for the Sec. 1983 claim had already run. However, under Rule 15 of the Federal Rules of Civil Procedure, the decision whether to allow a plaintiff to amend the complaint is separate from, and based upon a different standard than, the decision whether the new claim relates back to the original complaint. After the District Court allowed Caban-Wheeler to amend the complaint, the defendants did not move to dismiss the complaint and did not plead in their amended answer that the statute of limitations had run on the Sec. 1983 claim. 2 Thus the District Court never ruled on whether the new claim related back to the original complaint under Rule 15(c) of the Federal Rules of Civil Procedure or on whether the statute of limitations barred the claim. By never raising this affirmative defense in the District Court, the defendants waived it.
The defendants contend that it was error for the District Court to amend the verdict to reflect one dollar in nominal damages after the jury found no actual damages, and that the punitive damages award cannot stand where no nominal or actual damages were found. According to the defendants, the Supreme Court in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) and Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) merely held that a procedural due process violation is actionable for nominal damages even absent proof of actual damages. Thus in this case, where the jury awarded no actual damages and where Caban-Wheeler requested no jury instruction regarding nominal damages, she is not entitled to nominal damages.
We read the Supreme Court precedent differently. In Farrar, the Court stated, "Carey obligates a court to award nominal damages when a plaintiff establishes the violation of his right to procedural due process but cannot prove actual injury." Farrar, 506 U.S. at 112, 113 S.Ct. at 573. In this case, the jury expressly found that Caban-Wheeler's procedural due process rights were violated, and so the District Court did not err in awarding nominal damages.
Because Caban-Wheeler obtained a valid judgment for nominal damages as well as punitive damages, she was a prevailing party for purposes of 42 U.S.C. Sec. 1988. See Farrar, at 111-12, 113 S.Ct. at 573. Nominal damages alone are sufficient. Id.
Next, the defendants argue that the District Court erred in ruling that Robert Brisbane, Herbert Mabry, Ellinor Dye, and Charles Cherry had waived any defense of judicial immunity. This case was first filed in 1986. The defendants failed to raise this issue in the first trial, on the first appeal, and in the second trial on remand. The judicial immunity defense was raised for the first time after the jury verdict in a renewed motion for judgment as a matter of law. Under Rule 50(b) of the Federal Rules of Civil Procedure, such a motion may be used to renew consideration of issues initially raised in a pre-verdict motion for judgment as a matter of law. Because this defense was not raised in such a motion for judgment as a matter of law, it would have been improper for the District Court to consider it in the renewed motion for judgment as a matter of law. Moreover, because the issue was not raised during trial or at any time before, the issue was waived. See FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir.1993); Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir.1994).
The defendants also argue that William Elsea, Robert Brisbane, Ellinor Dye, Herbert Mabry, and Charles Cherry are entitled to qualified immunity. This Court has appellate jurisdiction to review District Court decisions for error. See 28 U.S.C. Sec. 1291; FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir.1993)....
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