Clarke v. Frank

• Decision Date: 06 April 1992
• Docket Number: D,881,Nos. 789,s. 789
• Citation: 960 F.2d 1146
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 1545, 58 Empl. Prac. Dec. P 41,420 Darren CLARKE, Plaintiff-Appellant-Cross-Appellee, v. Anthony M. FRANK, Postmaster General of the United States, Defendant-Appellee-Cross-Appellant. ockets 91-6221, 91-6255.
• Court: U.S. Court of Appeals — Second Circuit

Page 1146

960 F.2d 1146

59 Fair Empl.Prac.Cas. (BNA) 1545,

58 Empl. Prac. Dec. P 41,420

Darren CLARKE, Plaintiff-Appellant-Cross-Appellee, v. Anthony M. FRANK, Postmaster General of the United States Defendant-Appellee-Cross-Appellant.

Nos. 789, 881, Dockets 91-6221, 91-6255.

United States Court of Appeals Second Circuit.

Argued Jan. 14, 1992.

Decided April 6, 1992.

Loren Baily, New York City, for plaintiff-appellant-cross-appellee.

Paul Weinstein, Asst. U.S. Atty., Brooklyn, N.Y., (Andrew J. Maloney, U.S. Atty., of counsel) for defendant-appellee-cross-appellant.

Before: TIMBERS, MESKILL and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Plaintiff ("Clarke") appeals from orders of the United States District Court for the Eastern District of New York, (Carol Bagley Amon and John L. Caden, Magistrate Judges ), awarding him $88,694.63 in back pay, plus prejudgment interest, for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., ("Title VII") committed by defendant United States Postal Service ("Postal Service"). Clarke also appeals from the district court's post-trial order granting him $24,000 in attorney's fees, rather than the $82,160 he had requested. The Postal Service cross-appeals from the district court's post-trial order denying its motion to strike the award of prejudgment interest, and also contests the decision to award attorney's fees. For the reasons set forth below, we affirm in part, reverse in part, and remand to the district court with instructions.

BACKGROUND

The Postal Service hired Clarke as a "flexible mail carrier" in May, 1981. As with all new employees, the Postal Service placed Clarke on probation for 90 days, and directed a supervisor to evaluate Clarke's work performance at 30-day intervals.

Clarke received a satisfactory report on both his 30-day and 60-day evaluations, which were conducted by the same supervisor. A different supervisor, however, conducted the final evaluation. In his report, this supervisor characterized Clarke's performance as "unacceptable," and recommended that the Postal Service terminate Clarke's employment. The Postal Service fired Clarke on July 27, 1981.

Clarke filed a discrimination complaint with the Postal Service a month later, alleging that the decision to fire him was racially motivated. Clarke's complaint resulted in a four-year odyssey through the administrative thicket mandated in employment discrimination cases. Ultimately, the Equal Employment Opportunity Commission ("EEOC") issued an order in September The Postal Service wrote to Clarke on December 16, 1985, and offered him reinstatement to his mail carrier position effective January 18, 1986. As part of its efforts to calculate Clarke's back pay, the Postal Service also asked Clarke to submit documentation of his earnings from 1981 to 1985, since those earnings would be subtracted from what he otherwise would have earned as a mail carrier.

                1985 requiring the Postal Service to reinstate Clarke, and to award him back pay for the four years.   The EEOC did not calculate the amount of back pay actually due to Clarke, but rather remanded this matter to the Postal Service for determination
                

On January 15, 1986, Clarke sent a letter to the Postal Service declining the job offer. Instead, he asked the Postal Service to reinstate him in June 1986, because he had enrolled at Baruch College, and would finish his studies then. In response to the inquiry about his 1981-1985 earnings, Clarke wrote that he had worked between sixteen and twenty hours per week at various jobs since his termination from the Postal Service, and had earned nearly $16,000 during that time.

The Postal Service did not acknowledge Clarke's request for deferment of reinstatement; and Clarke did not pursue reinstatement after he graduated from Baruch. Soon after his graduation, however, Clarke contacted the Postal Service because he had not received any of his back pay award. A Postal Service spokesman told Clarke that his back pay award was still under consideration.

In November, 1987 (over a year after Clarke notified the Postal Service of its delay in processing his award), the Postal Service wrote to Clarke, and informed him that it would not award any back pay because he had not made "reasonable efforts" to obtain full-time employment. Clarke then filed the present lawsuit, seeking back pay, interest and attorney's fees.

The case was referred to then-Magistrate Judge Carol Bagley Amon for all purposes, pursuant to 28 U.S.C. § 636(c). ¹ Clarke moved for summary judgment, arguing that the Postal Service was "collaterally estopped" from raising the defense that Clarke had not made "reasonable efforts" to obtain full-time employment, because it had not asserted that argument during the EEOC proceedings. The district court denied Clarke's motion, finding that the EEOC typically determines only whether an employer is liable under Title VII, and does not address the damages, including back pay, to which an aggrieved employee is entitled. Because the Postal Service's argument questioned only Clarke's right to back pay, the district court held that the Postal Service could raise this argument at trial.

Upon Magistrate Judge Amon's appointment as a District Judge in August, 1990, the case was reassigned to Magistrate Judge John L. Caden for trial. At trial, Clarke testified that, in addition to the employment that he had previously reported to the Postal Service, he had also worked twenty hours per week at the "Ferry Bank" restaurant between January, 1983 and November, 1985. When coupled with the employment already disclosed to the Postal Service, Clarke's hours at the Ferry Bank amounted to full-time employment during the 34 months he worked at that restaurant.

The district court found that Clarke's various sources of income demonstrated his willingness to work full-time, and, therefore, that the Postal Service had not proven that Clarke had failed to seek comparable full-time employment. The court further found that the Postal Service's December 16, 1985 reinstatement offer was unconditional, thereby tolling the Postal Service's liability for back pay as of that date. Accordingly, the court held that Clarke was Clarke and the Postal Service then filed separate motions in the district court seeking to amend the judgment. In his motion, Clarke requested attorney's fees of $82,160, to compensate his attorney for the 410.8 hours she claimed to have worked on the case, at the rate of $200 per hour. The Postal Service's motion sought a recalculation of the back pay award, and reconsideration of the grant of prejudgment interest.

                entitled to backpay from July 27, 1981 (the date the Postal Service terminated his employment), to December 16, 1985 (the date of the Postal Service's reinstatement offer).   The court awarded Clarke $96,941.63, representing the amount earned by a similarly situated white Postal Service employee during the back pay period, minus Clarke's earnings from his divers jobs during that period.   The court also awarded prejudgment interest on the back pay award
                

The district court awarded Clarke attorney's fees of $24,000, representing 120 hours that the court determined were reasonably devoted to the case, multiplied by $200 per hour. ² After examining the Postal Service's evidence concerning Clarke's outside earnings, the district court reduced the back pay award to $88,694.63. Finally, the court denied the Postal Service's motion to strike the award of prejudgment interest.

Clarke now appeals from the district court's orders. First, he claims that the Postal Service should have been "collaterally estopped" from arguing at trial that Clarke had failed to seek full-time employment. Second, he asserts that the district court mistakenly tolled the Postal Service's back pay liability as of December 16, 1985. Finally, Clarke claims that the district court erred in awarding lesser attorney's fees than he had requested. The Postal Service cross-appeals, challenging the district court's awards of attorney's fees and pre-judgment interest.

DISCUSSION

I. "Collateral Estoppel "

The record is clear that the EEOC considered only whether the Postal Service had violated Clarke's rights under Title VII. It did not pass on the amount of back pay due to Clarke, and did not ask the parties to submit any evidence on this issue. Nonetheless, Clarke argues that the district court should have applied the doctrine of "collateral estoppel" to bar the Postal Service from arguing at trial that Clarke had failed to mitigate his damages by not seeking full-time employment. We hold that the district court properly allowed the Postal Service to raise its mitigation argument at trial.

Under the doctrine of claim preclusion, a judgment is the "full measure of relief to be accorded between the same parties on the same 'claim' or 'cause of action.' " Kaspar Wire Works, Inc. v. Leco Engineering & Mach., Inc., 575 F.2d 530, 535 (5th Cir.1978), cited in Charles A. Wright et al., 18 Federal Practice & Procedure § 4402 at 7 (1981) [hereafter "Wright"]. Claim preclusion prevents a party from litigating any issue or defense that could have been raised or decided in a previous suit, even if the issue or defense was not actually raised or decided. See Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir.1985); see also Wright § 4414 at 109.

Collateral estoppel, or "issue preclusion," prevents a party from relitigating only those "issues actually adjudicated, and essential to the judgment, in a prior litigation ..." Kaspar Wire Works, 575 F.2d at 536 (emphasis added). Unlike claim preclusion, collateral estoppel does not prohibit a party from litigating issues that were never argued or decided in the prior proceeding. See Wright § 4416 at 136.

Here, the EEOC determined only that the Postal Service's termination of Clarke violated Title VII. It never addressed whether Clarke had mitigated his damages...