Evans v. City of Evanston

• Citation: 941 F.2d 473
• Decision Date: 24 October 1991
• Docket Number: No. 90-3456,90-3456
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 281, 57 Empl. Prac. Dec. P 40,921 Charlene EVANS, Individually and on Behalf of a Class, Plaintiff-Appellant, v. CITY OF EVANSTON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 473

941 F.2d 473

57 Fair Empl.Prac.Cas. (BNA) 281,

57 Empl. Prac. Dec. P 40,921

Charlene EVANS, Individually and on Behalf of a Class Plaintiff-Appellant, v. CITY OF EVANSTON, et al., Defendants-Appellees.

No. 90-3456.

United States Court of Appeals Seventh Circuit.

Argued June 7, 1991.

Decided Aug. 14, 1991.

Rehearing and Rehearing En Banc

Denied Oct. 24, 1991.

Elizabeth Dale, Kenneth N. Flaxman, Chicago, Ill., for plaintiff-appellant.

Jack M. Siegel, Siegel & Warnock, Chicago, Ill., for defendants-appellees.

Before COFFEY, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Charlene Evans brought suit to challenge the 1983 physical fitness test administered by the Evanston Fire Department, alleging that the test had a disparate impact on women in violation of Title VII. The district court agreed in part, holding that though the skills Evanston tested were reasonably related to those required by a firefighter, the passing score Evanston selected was arbitrary. Evans v. City of Evanston, 695 F.Supp. 922 (N.D.Ill.1988). After Evans appealed the portion of the decision that was adverse to her, Evanston chose to cross-appeal the portion of the decision that went against it.

On appeal, Evans lost and Evanston won. Evans v. City of Evanston, 881 F.2d 382 (7th Cir.1989). In Evans' first direct appeal we agreed with the district court and Evanston that the test the City used was a reasonable predictor of fitness to be a firefighter. Our decision on Evanston's cross-appeal, however, was to remand the case to the district court to reexamine its decision with respect to the passing score in light of the Supreme Court's decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), which placed the burden of persuasion in the business-justification phase of a Title VII case on the plaintiff. See id. 109 S.Ct. at 2126. We agreed with the district court's choice of remedy for the disparate impact on women caused by the arbitrary scoring of the test, and wrote that if the result on remand was a second finding that the passing score Evanston adopted violated Title VII, the district court should again require the City to pay damages rather than ordering it to hire the women who would have passed a fairly scored test.

On remand, the district court revisited its earlier decision, and again concluded that the passing score Evanston selected was arbitrary and had a disparate impact on women in violation of Title VII. In accordance with our opinion, the district court rejected the adoption of a hiring remedy because of the preliminary screening role the physical fitness exam plays in the lengthy process of becoming a firefighter in Evanston. It opted instead to award damages, and ordered the City to pay the plaintiff class approximately $80,000.

Remaining before the district court, and now on appeal, was the question of attorney's fees, which under Title VII a district court, "in its discretion ... may allow the prevailing party." 42 U.S.C. § 2000e-5(k). The two lawyers who made up Evans' legal team submitted a fee petition seeking compensation for 605 hours, 458 hours for senior counsel and 147 for junior counsel. Plaintiffs' counsel also sought an adjustment above the lodestar figure to reflect their contingent-fee representation of Evans, and later requested a share of the damages received by the class. The district court made a variety of downward adjustments which, taken together, reduced the number of hours for which fees would be awarded to 322 1/2, 248 1/2 for senior counsel and 74 for junior counsel. It also denied the requests for an adjustment above the lodestar figure and a share of the recovery. Plaintiffs' counsel appeal, challenging various aspects of the district court's decision reducing their fees or refusing to increase them. We affirm.

I. FEES FOR THE FIRST APPEAL

The district court denied plaintiffs' counsel any fees for the time spent contesting the first appeal, observing that "[t]he plaintiff did not prevail on any issue on appeal. The defendant did prevail on the principal issue it raised." Memorandum Opinion and Order, Aug. 30, 1990 ("Mem.Op."), at 1, 1990 WL 129603. The effect of this decision was to disallow 86 hours billed by senior counsel and 42 billed by junior counsel. In this appeal, plaintiffs' counsel argue that the district court's disallowance of fees for the appeal was error. They assert that they were justified in pursuing an appeal from the district court's initial decision because that decision failed to afford plaintiffs the remedy they sought, jobs as firefighters in Evanston. They also argue that when they decided to appeal, Evanston cross-appealed, forcing the plaintiffs to defend even the limited victory they had obtained in the trial court. Evanston responds that after the district court released its first opinion, the city council resolved not to appeal the decision. When, however, plaintiffs chose to appeal, the city chose to cross-appeal. Since Evans and her co-plaintiffs prevailed on no issue in the appeal or cross-appeal, the City argues, their counsel should receive no fees for the time they spent briefing and arguing the appeal.

As the Supreme Court wrote in Hewitt v. Helms, 482 U.S. 755, 759, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654 (1987), "[i]n order to be eligible for attorney's fees under [Title VII], ¹ a litigant must be a 'prevailing party'.... Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." See also Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989); Libby by Libby v. Illinois High School Ass'n, 921 F.2d 96, 98 (7th Cir.1990). In this case, all the plaintiffs received on appeal was a reversal and remand on the one issue upon which they had achieved success in the district court. See Evans v. City of Evanston, 881 F.2d at 385 (remanding issue of test scoring to district court for reconsideration in light of Wards Cove ). "[T]he relevant inquiry" for determining whether fees should be awarded for an appeal "is simply whether the party seeking compensation substantially prevailed at the appellate level." Kelley v. Metro. County Bd. of Educ., 773 F.2d 677, 682 (6th Cir.1985) (en banc ), cert. denied, 474 U.S. 1083, 106 S.Ct. 853, 88 L.Ed.2d 893 (1986). In this case, the result of that inquiry is decidedly adverse to plaintiffs' counsel.

Plaintiffs' counsel argue that the district court's resolution of the question of awarding fees for work done on the first appeal ignores our decision in Ustrak v. Fairman, 851 F.2d 983 (7th Cir.1988). To the contrary, however, Ustrak compels us to conclude that the district court correctly declined to grant fees for the first appeal. We observed in Ustrak that "[a] civil rights plaintiff who, having won a judgment in the district court, appeals, seeking a greater victory--and fails utterly in his appeal, will be hard pressed to demonstrate an entitlement to his attorney's fees on appeal, even though he remains the prevailing party in the underlying litigation." 851 F.2d at 990. In this case, plaintiffs' counsel did win--in part--in the district court, did appeal, and did "fail utterly" on appeal. We agree with the district court that plaintiffs' counsel do not merit fees for their unsuccessful efforts in the first appeal.

II. REDUCTION IN HOURS

The next issue on appeal concerns the district court's 30 percent reduction in the hours claimed by plaintiffs' counsel. The trial judge arrived at this reduction through the use of a method he described as follows:

It is my practice to conduct a close examination of two or three particular tasks performed by a counsel claiming fees and to apply the findings made there to the remaining hours claimed. Counsel are informed of this practice and counsel opposing the fee is permitted to suggest the specific work that ought to be scrutinized. This sampling procedure operates on the reasonable premise that a lawyer's billing and work habits and practices are, in fact, habits and practices, which will uniformly apply to all of the lawyer's work.

Mem. Op. at 1-2.

In this case, Evanston proposed that the district court scrutinize two aspects of the work plaintiffs' counsel performed, the preparation of a summary judgment motion and post-trial findings of fact. Plaintiffs' counsel claimed 78 hours for the summary judgment motion and 61 hours for the findings of fact. The district court found that reasonable time estimates for these two tasks were 63 hours and 35 hours respectively. Adding the allowed time for the two tasks and dividing it by the claimed time for the two tasks, the district court arrived at the figure of 70 percent. ² It applied this percentage to the hours senior and junior counsel claimed (after subtracting the time attributable to the first appeal), 372 hours for senior counsel and 105 hours for junior counsel. The district court ruled that 260 hours of senior counsel's requested time and 74 hours of junior counsel's requested time would be allowed. It then multiplied these figures by the billing rates it selected for junior and senior counsel to arrive at the lodestar figure.

On appeal, plaintiffs' counsel argue that the district court's across-the-board 30 percent reduction was an abuse of discretion. They contend that the time they spent on the two activities sampled by the district court was reasonable, and that the district court's methodology in calculating the across-the-board reduction goes beyond the broad discretion afforded district courts in deciding fee awards.

"For some few trial court determinations, the question of what is the standard of appellate review is answered by relatively explicit statutory command." Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 2546, 101 L.Ed.2d 490 (1988). This case presents one of them. Title VII's...