Ellis v. University of Kansas Medical Center, Nos. 96-3343

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BALDOCK, HOLLOWAY, and MURPHY; HOLLOWAY; BALDOCK
• Citation: 1998 WL 886744,163 F.3d 1186
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1802, 131 Ed. Law Rep. 608, 1999 CJ C.A.R. 342 Julie L. ELLIS, Plaintiff-Appellant/Cross-Appellee, v. UNIVERSITY OF KANSAS MEDICAL CENTER; University of Kansas; Kansas State Board of Regents; Rick Robards; David Lewin; Alice P. Henderson, in those individuals' official and individual capacity, Defendants-Appellees/Cross-Appellants.
• Decision Date: 21 December 1998
• Docket Number: Nos. 96-3343,96-3344

Page 1186

163 F.3d 1186 78 Fair Empl.Prac.Cas. (BNA) 1802, 131 Ed. Law
Rep. 608,
1999 CJ C.A.R. 342 Julie L. ELLIS, Plaintiff-Appellant/Cross-Appellee,
v.
UNIVERSITY OF KANSAS MEDICAL CENTER; University of Kansas;
Kansas State Board of Regents; Rick Robards; David Lewin;
Alice P. Henderson, in those individuals' official and
individual capacity, Defendants-Appellees/Cross-Appellants. Nos. 96-3343, 96-3344. United States Court of Appeals,
Tenth Circuit. Dec. 21, 1998.
As Corrected Jan. 8, 1999.

Page 1189

John B. Gage II, Overland Park, Kansas, for Plaintiff/Appellant/Cross-Appellee.

John C. McFadden, Special Assistant Attorney General, Kansas City, Kansas, for Defendants/Appellees/Cross-Appellants.

Before BALDOCK, HOLLOWAY, and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff/Appellant/Cross-Appellee Julie Ellis (Ellis) brought this suit on August 25, 1995, against defendants in the United States District Court for the District of Kansas alleging violations of her rights under the First and Fourteenth Amendments and 42 U.S.C. §§ 1981, 1983, 1985 and 1988. On about August 30, 1995, the parties entered into a settlement agreement disposing of Ellis's substantive claims. Ellis subsequently moved for an award of attorney fees and costs, which defendants opposed. The district court granted Ellis's motion for fees and costs, but substantially reduced the amount of fees claimed. Memorandum and Order, App. at 205-07. Ellis appeals the reduction in fees and defendants appeal the district court's ruling to award any fees or costs. We have jurisdiction pursuant to 28 U.S.C. § 1291.

I A

Ellis, a white female, initially worked the day shift as a secretary in the Pharmacology Department of the University of Kansas' medical center. In January 1995, after obtaining admission to nursing school, Ellis interviewed with defendant Alice Henderson (Henderson) for a demotion to the position of

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night shift office assistant in patient admitting. App. at 10, 26, 47. Ellis advised Henderson that she was requesting the transfer and demotion in order to permit Ellis to attend nursing school during the day and work at night. Henderson granted the transfer and Ellis began working the night shift.

The minor controversy that escalated into the present lawsuit occurred in June 1995 when, on two occasions, Ellis advised her employer that she could not work due to illness. Id. at 10, 47. Subsequent to her two occasions of illness, Ellis received a paycheck that did not include two days' worth of wages. Ellis inquired in writing as to why her pay was reduced. She was informed by letter dated July 3, 1995, that the reduction was due to her failure to meet the four-hour call-in policy, which requires employees to provide at least four hours' prior notice of not being able to report for work. Id. at 28. After failing to obtain relief Ellis filed a formal grievance. Id. at 47-48.

Ellis's supervisor, Henderson, an African-American female, responded to Ellis's formal grievance with a series of memoranda dated July 17, 1995, (1) confirming the pay reduction due to Ellis's failure to properly report her intended absences, (2) admonishing Ellis for unprofessional conduct during a July 13, 1995, meeting regarding her grievance, (3) reducing Ellis's pay by an additional 40 minutes for failure to be present at her station on July 13, 1995, following the meeting, and (4) recommending that Ellis be suspended for three days without pay for repeated failures to report to work as scheduled. App. at 29-31. Defendant Rick Robards (Robards), Director of the Department of Human Resources, approved on July 26, 1995, Henderson's recommendation to suspend Ellis. Because Ellis had permanent status in the Kansas Civil Service system, Robards advised Ellis of her right to further appeal the matter to the Kansas Civil Service Board. Id. at 33.

Between July 17 and July 26, 1995, Ellis sought to dispute the claimed 40-minute absence at a suspension hearing by producing records of patient accounts upon which she had recorded time entries. Id. at 48. Henderson then recommended to Robards on July 27, 1995, that Ellis be terminated for gross misconduct for revealing confidential patient information. Robards gave notice on July 28, 1995, to Ellis that he proposed her employment be terminated. Id. at 34, 37.

Ellis appealed her proposed termination to defendant David Lewin, the Appointing Authority's representative, asserting that the termination was in retaliation for Ellis's decision to exercise her rights under the Kansas Civil Service Act. Id. at 37, 49. On August 11, 1995, following Ellis's appeal, Robards notified Ellis that the proposed dismissal would be withdrawn and Ellis would be returned to her scheduled shift effective August 12, 1995.

On that date, Ellis returned to work her scheduled night shift but was handed a memorandum dated August 11, 1995, and authored by Henderson, advising Ellis that effective August 14, 1995, Ellis would be scheduled to work the day shift between 8:00 a.m. and 4:30 p.m. from Sunday through Thursday. Henderson reported in the memorandum that Ellis was needed "to support staffing on day shift during the absence of an employee who will be on medical leave." App. at 39, 49. Ellis attempted to grieve the transfer, asserting that defendants knew Ellis was due to begin her classes at nursing school on August 28, 1995. Id. at 49.

Pursuant to University policy, Ellis met with Henderson to discuss the transfer memorandum, inquiring why another night shift employee who had expressed an interest in switching to the day shift was not transferred. Henderson told Ellis that the night supervisor did not want Ellis working the night shift. Id. ¹ Because working the day shift would preclude Ellis from attending her nursing classes, ² Ellis sought prompt action to return her to the night shift.

Believing that she might be the victim of racial discrimination and retaliation for exercising

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her legal rights, Ellis sought the advice of counsel on August 1, 1995, and retained John Gage on August 21, 1995, ³ when it became apparent to her that defendants would not consent to transfer her back to the night shift. Ellis gave Gage a $500 retainer and agreed to pay a fee of $150 per hour. Id. at 126.

On August 22, 1995, Ellis signed charges of race discrimination and retaliation, which Gage transmitted to the Kansas Human Rights Commission the following day. Id. at 126-27. Gage contacted Lewin by telephone on August 22 and 23, advising him that Henderson had effectively undermined the decision not to terminate and constructively discharged Ellis by transferring Ellis back to the day shift, knowing that Ellis would not be able to work due to her nursing school class schedule. Id. at 127. Gage expressed Ellis's position that Henderson's action was motivated by race discrimination and retaliation for Ellis having exercised her right to grieve unfavorable decisions by defendants. Id.

Lewin advised Gage on August 23 that neither he nor Robards would interfere with Henderson's decision to transfer Ellis to the day shift and that Ellis's only available recourse was to file a complaint with the Civil Service Board, the Kansas Human Rights Commission, or the courts. Id.

B

Gage filed the instant suit on Ellis's behalf on August 25, 1995, against the University's medical center and several employees of the center in their individual and official capacities under the First and Fourteenth Amendments and 42 U.S.C. §§ 1981, 1983, 1985 and 1988. Id. at 8-9. That day Gage also filed a motion for a temporary restraining order (TRO) as well as a motion for a preliminary injunction, seeking to enjoin defendants from carrying out the decision to transfer Ellis to the day shift. Id. at 40. The judge scheduled a hearing for August 28, the same day Ellis was scheduled to begin classes. At the hearing the judge denied the TRO but scheduled a preliminary injunction hearing for September 20, 1995, noting that he might change his ruling and order Ellis restored to the night shift. Id. at 101-104.

On August 30, 1995, defendants' counsel forwarded a letter to Gage offering to allow Ellis to return to the night shift in order to permit her to attend nursing school during the day; this was expressly contingent on no further attendance problems occurring. Id. at 108. In return defendants demanded by letter that Ellis dismiss "the underlying lawsuit which seeks relief pursuant to 42 U.S.C. §§ 1981, 1983, and 1985," withdraw her application for a preliminary injunction, and withdraw her charge of racial discrimination filed with the Kansas Human Rights Commission. Id. at 108, 127-28.

An affidavit of Gage states that he phoned Ellis and told her that, in his opinion, such a settlement offer that failed to address costs or attorneys' fees would not affect her right to claim fees and expenses as a prevailing party pursuant to 42 U.S.C. § 1988. App. at 127-28. Pursuant to Ellis's instruction, Gage transmitted on August 30, 1995, a notice of acceptance on the terms stated in the offer to defense counsel. Id. at 109, 128. Ellis further advised defendants in this transmittal that she would return to the night shift on September 10, 1995. Id. at 108-09. Nothing in this correspondence made any mention of fees or costs.

Ellis then moved to withdraw her motion for a preliminary injunction on September 13, 1995, which request the district court granted on September 20. App. at 3. Although the parties agreed to settle the matter at the end of August 1995, a settlement agreement and release of claims was not signed by Robards on behalf of defendants until January 26, 1996. Ellis did not sign the agreement until February 27, 1996. The signed six-page "Settlement Agreement and Release of Claim" made no mention of fees or costs. Id. at 159-64. ⁴ Gage forwarded

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the settlement agreement along with the stipulation for dismissal to defense counsel....