Carter v. Sedgwick County, Kan.

• Decision Date: 23 September 1994
• Docket Number: No. 92-3029,92-3029
• Citation: 36 F.3d 952
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 1585 E. Jean (Calloway) CARTER, Plaintiff-Appellant, v. SEDGWICK COUNTY, KANSAS; the Board of County Commissioners of Sedgwick County, John R. Cameron, Michael R. Brand, Donald E. Gragg, Tom Scott, Bernard Hentzen, and Timothy Witsman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 952

36 F.3d 952

65 Fair Empl.Prac.Cas. (BNA) 1585

E. Jean (Calloway) CARTER, Plaintiff-Appellant, v. SEDGWICK COUNTY, KANSAS; the Board of County Commissioners of Sedgwick County, John R. Cameron, Michael R. Brand Donald E. Gragg, Tom Scott, Bernard Hentzen, and Timothy Witsman, Defendants-Appellees.

No. 92-3029.

United States Court of Appeals Tenth Circuit.

Sept. 23, 1994.

J. Greg Kite, Wichita, KS, for plaintiff-appellant.

Edward L. Keeley (Alan L. Rupe with him on the brief) of Alan L. Rupe Law Offices, P.A., Wichita, KS, for defendants-appellees.

Before SEYMOUR, Chief Judge, MOORE, Circuit Judge, and BURCIAGA ^*, District Judge.

SEYMOUR, Circuit Judge.

Jean Carter, who is black, sued Sedgwick County, its county commissioners, and the assistant director of the County's Department of Community Corrections, alleging, inter alia, that defendants discriminated against her on the basis of her race when they terminated her employment with the Department. She initially won a judgment, which this court reversed in part and remanded for further proceedings. Ms. Carter now appeals from the district court's decision on remand, raising issues involving the court's calculation of interest and attorneys fees in connection with her successful claim under 42 U.S.C. Sec. 2000e et seq. (Title VII). She also asserts that the 1991 Civil Rights Act should be applied to her retroactively. We affirm in part, reverse in part, and again remand for further proceedings.

I.

Ms. Carter initially asserted her claims for race discrimination under 42 U.S.C. Sec. 1981 and 42 U.S.C. Secs. 2000e et seq. (Title VII). After a bench trial, the district court ruled in favor of Ms. Carter on these charges. See Carter v. Sedgwick County, 705 F.Supp. 1474 (D.Kan.1988) (Carter I ). The court entered judgment against the assistant director under section 1981 for $100,000 in compensatory damages and $10,000 in punitive damages. In addition, the court awarded Ms. Carter lost income in the amount of $10,748.05 against the Sedgwick county commissioners and directed that she either be reinstated or paid her previous salary.

Defendants appealed. While the appeal was pending, the Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which held that section 1981 does not apply to discriminatory conduct occurring after an employment contract is formed. On appeal, we applied our decision in Trujillo v. Grand Junction Regional Ctr., 928 F.2d 973 (10th Cir.1991), which held in light of Patterson that section 1981 does not cover a discriminatory race-based discharge. See Carter v. Sedgwick County, 929 F.2d 1501, 1504 (10th Cir.1991) (Carter II ). Accordingly, we reversed the district court's determination that defendants were liable under section 1981, and reversed the court's award of compensatory and punitive damages under that section. We further observed that although under Patterson and Trujillo a discriminatory discharge was not encompassed by section 1981, it is covered by Title VII. We therefore remanded to allow the district court to clarify whether the finding of discrimination that supported the court's section 1981 ruling was equally applicable to Ms. Carter's Title VII claim, noting that the award of lost wages would be authorized under that section. We likewise held that although an award of front pay under Title VII would be within the district court's discretion, the court's failure to specify an ending date and to take into account Ms. Carter's earning capacity amounted to an abuse of that discretion.

On remand, the district court made clear that its discriminatory discharge finding applied to Ms. Carter's Title VII claim and awarded back pay. The court also ordered interest to run on its original award of attorneys fees to Ms. Carter at the rate of seven percent per annum, awarded her additional attorneys fees for the appeal, and awarded as front pay the difference between her salary at the Department and her salary with her current employer for a six-month period. Ms. Carter filed a motion for reconsideration contending that the court erred in its calculation of the interest due on the original attorneys fee award, erred in setting the amount of fees due as a result of the appeal, and erred in its award of front pay. In addition, Ms. Carter argued that as a result of the passage of the 1991 Civil Rights Act, the compensatory and punitive damages originally awarded under section 1981 should be reinstated because they were authorized under both the Act's description of conduct covered by section 1981 and by the Act's expansion of the remedies available under Title VII. The district court denied reconsideration.

Ms. Carter now appeals. She asserts that the district court's calculation of interest is directly contrary to that mandated by the applicable federal statute, 28 U.S.C. Sec. 1961. She also argues that the court abused its discretion when setting the attorneys fee award for the first appeal by reducing the number of hours and the hourly rate. In addition, Ms. Carter contends the court's award of front pay is not adequate to make her whole. Finally, she asserts that the 1991 Act should be applied retroactively to reinstate her original award of compensatory and punitive damages. We abated the appeal pending the Supreme Court's decisions in two cases that presented the retroactivity issue with respect to several provisions of the 1991 Act, including those that Ms. Carter has argued should apply here. Those decisions have now been handed down. See Landgraf v. USI Film Prods., --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Rivers v. Roadway Express, Inc., --- U.S. ----, 114 S.Ct. 1522, --- L.E.2d ---- (1994).

II.

The 1991 Act contains two provisions that, if applied retroactively to Ms. Carter's claims, could authorize an award of compensatory and punitive damages to remedy a discriminatory discharge. Under the Act and contrary to the opinions in Patterson and Trujillo, conduct remediable by section 1981 includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C.A. Sec. 1981(b) (West Supp.1994). The Act thus encompasses the conduct at issue here within section 1981, which has always authorized the recovery of compensatory and punitive damages. The Act also specifically authorizes the recovery of compensatory and punitive damages under Title VII, see 42 U.S.C.A. Sec. 1981a(a), (b) (West Supp.1994), which has always applied to claims of discriminatory discharge. ¹

In Steinle v. Boeing Co., 24 F.3d 1250 (10th Cir.1994), we held that section 1981a of the Act, authorizing the recovery of compensatory and punitive damages under Title VII, does not apply retroactively in light of the Supreme Court's decision in Landgraf. Likewise, in Simons v. Southwest Petro-Chem, Inc., 28 F.3d 1029 (10th Cir.1994), we held that section 1981(b) of the Act, addressing the conduct remediable under section 1981, does not apply retroactively under Rivers. The analyses and holdings in those cases are equally applicable here. Accordingly, we affirm the district court's refusal to reinstate Ms. Carter's judgment for compensatory and punitive damages.

III.

Ms. Carter takes issue with the district court's calculation of the amount of interest due on the original fee award, the amount of fees for the first appeal, and the amount of front pay. We address the propriety of each award in turn.

A.

The district court held that Ms. Carter's attorneys were entitled to interest on their original fee award at the rate of seven percent per annum. Ms. Carter argues that this award is directly contrary to the applicable federal statute, 28 U.S.C. Sec. 1961. That statute, which governs the award of interest "allowed on any money judgment in a civil case recovered in a district court," provides that interest shall be calculated "at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment." Id. Sec. 1961(a). The statute further provides that interest "shall be computed daily." Id. Sec. 1961(b).

We held in Transpower Constructors v. Grand River Dam Auth., 905 F.2d 1413, 1423-24 (10th Cir.1990), that attorneys fees are to be included as part of a money judgment upon which post-judgment interest is awarded pursuant to section 1961. Defendants concede that under our holding in Transpower Constructors the district court erred when it failed to follow section 1961 in awarding post-judgment interest. Nonetheless, defendants argue that the issue is moot because one of Ms. Carter's two attorneys, Beverly Dempsey, settled the issue of attorneys fees and filed a satisfaction of judgment while this appeal was pending. Defendants contend that Ms. Carter should be deemed to have acquiesced in this judgment, citing Fidelcor Mortg. v. Insurance Co. of N. Am., 820 F.2d 367 (11th Cir.1987). We disagree.

Fidelcor applied the general rule that "when a litigant accepts the substantial benefits of a judgment, voluntarily and intentionally, and with knowledge of the facts, he waives the right to appeal an otherwise adverse judgment." Id. at 370. Ms. Dempsey was allowed to withdraw as counsel for Ms. Carter after the court had assessed the fees at issue here. Only thereafter did Ms Dempsey negotiate a settlement with defendants and file a satisfaction of judgment. Neither Ms. Carter nor her other attorney were aware of this agreement at the time. Moreover, the satisfaction of judgment relates only to Ms. Dempsey's fees, interest, and expenses. Under these circumstances, the rule articulated in Fidelcor is not applicable. Defendants' argument that the award of fees to the attorneys is so...