Koopman v. Water Dist. No. 1 of Johnson County, Kan., 93-3095

• Decision Date: 13 December 1994
• Docket Number: No. 93-3095,93-3095
• Parties: 6 NDLR P 299 Vincent KOOPMAN, Plaintiff-Appellant, v. WATER DISTRICT NO. 1 OF JOHNSON COUNTY, KANSAS, and Roger Fairbanks, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1417

41 F.3d 1417

6 NDLR P 299

Vincent KOOPMAN, Plaintiff-Appellant, v. WATER DISTRICT NO. 1 OF JOHNSON COUNTY, KANSAS, and Roger Fairbanks, Defendants-Appellees.

No. 93-3095.

United States Court of Appeals Tenth Circuit.

Dec. 13, 1994.

Stephen J. Dennis of Dennis & Battis, P.A., Fairway, KS, for plaintiff-appellant.

Daniel M. Zimmerman (Marty T. Jackson with him on the brief), of Speer, Austin, Holliday & Zimmerman, Olathe, KS, for defendants-appellees.

Before MOORE, LAY, ¹ and McWILLIAMS, Circuit Judges.

LAY, Senior Circuit Judge.

In the first appeal of this case, this Court reversed in part a grant of summary judgment in favor of Water District No. 1 of Johnson, Kansas, ("the District") as to Vincent Koopman's due process claim relating to his alleged wrongful discharge in November of 1986. See Koopman v. Water Dist. No. 1, 972 F.2d 1160 (10th Cir.1992). Trial was thereafter held; the district court ruled as a matter of law that Koopman had been denied both a pretermination and a post-termination hearing. The District thereafter claimed that Koopman would have been terminated for cause whether or not he was afforded due process. The jury returned a verdict in favor of Koopman for one dollar. The court then denied Koopman attorney's fees and this appeal followed.

On appeal Koopman asserts error in the instructions and claims the district court abused its discretion failing to award attorney's fees. We affirm the judgment of the district court on the merits; we reverse and remand for determination of reasonable attorney's fees to be awarded Koopman under the facts and circumstances of the case.

DISCUSSION

The District hired Koopman in 1982. In October of 1986, Koopman's supervisors met to discuss his excessive absenteeism. At that time, he held the position of Utility Man II. Koopman submitted to a physical exam which revealed he had a chronic back condition of spondylosis. The physician indicated that Koopman should not do the heavy lifting required of Utility Man II. Koopman was thereafter terminated and told there were no vacant positions for workers with his physical limitations. The District refused to review its decision, despite Koopman's express disagreement with the examining physician. Koopman thereafter brought this suit, alleging In this appeal, Koopman asserts that the court, notwithstanding its entry of judgment as a matter of law, should have instructed the jury more fully concerning the requirements of pretermination and post-termination hearings and informed the jury that they could award Koopman damages for emotional distress.

that the District had not provided him with a proper pretermination or post-termination hearing as required by the Fourteenth Amendment's guarantee of due process, that his termination had been retaliatory, and that his termination violated his First Amendment rights. ²

DUE PROCESS

The court instructed the jury that

[i]f a public employee has a property interest in continued employment he or she may not be deprived of that interest without due process of law, guaranteed by the Fourteenth Amendment. In such cases, due process consists of a pretermination hearing and a post-termination hearing. Whether plaintiff received a pretermination hearing or a post-termination hearing and whether those hearings were adequate are not issues about which you need to make a determination in this case.

In addition, the court told the jury "if you find that plaintiff had an implied contract of employment then as a matter of law, defendant deprived plaintiff of a property interest without due process of law."

The jury asked several questions during their deliberations as to what they could permissibly consider while deliberating if Koopman would have been discharged "whether or not [he] was afforded Constitutional due process." Without knowing what due process involved, Koopman insists the jury could not answer the question. He contends the court should have instructed that a pretermination hearing must include notice, an explanation of the employer's evidence, and an opportunity to respond. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). He also contends the jury should have been instructed that the post-termination hearing should have been more elaborate to allow for definitive factfinding. See Powell v. Mikulecky, 891 F.2d 1454, 1458 (10th Cir.1989).

The District responds that because the jury was not to consider whether Koopman got due process, they did not need to know what due process entails. Further, the District contends even if the omission was erroneous, it did not affect any of Koopman's substantial rights because the District provided unrebutted evidence showing Koopman was discharged because of his back condition.

As the case was submitted, we hold that all the jury needed to decide was whether Koopman's medical condition was sufficient reason for his termination and whether the District could have provided a job opening suitable for him. At trial, Koopman did not present any medical opinion contradicting the examining physician's report or make any showing that the District had a suitable job opening. We hold the trial court did not err in refusing to give instructions on the procedural requirements of due process.

DAMAGES FOR EMOTIONAL SUFFERING

Koopman urges there was sufficient evidence for the court to have instructed jurors that they could award damages for the emotional suffering the denial of due process caused him. He argues that if there is any evidence of mental distress, the issue of damages should go to a jury. Wulf v. City of Wichita, 883 F.2d 842 (10th Cir.1989). Koopman contends he testified his inability to get his termination decision reviewed left him "very distressed" and caused him "a lot of stress." ³

In Wulf we reviewed an award of damages under Sec. 1983 for mental anguish and distress arising from a wrongful termination of plaintiff's employment. We allowed damages because both Wulf and his wife testified he was under tremendous emotional strain from the loss of his job, but remanded with instructions to reconsider the amount of the award. Id. at 875.

Wulf is clearly distinguishable. Wulf's loss of his employment was wrongful and the issue of whether there was sufficient proof of emotional suffering from the denial of due process did not arise. Testimony by a plaintiff, and by one close to him or her, of emotional distress, supported by inferences readily drawn from the facts surrounding and following from the denial of procedural due process are sufficient to support an award of damages. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). ⁴ Here, Koopman offered no witness to corroborate his testimony as to his mental state. The circumstances of the case afford no basis for inferring the cause of Koopman's reported stress was the denial of due process rather than his termination.

BURDEN OF PROOF

This issue essentially revisits the first issue Koopman raised. Koopman argues the District failed to meet its burden of showing he would have been terminated even if he had received due process. Because jurors were not told what due process required, they could only speculate whether the District would have terminated Koopman even if Koopman had been given due process.

The jury verdicts make clear that jurors believed Koopman was terminated because of his back problems. Providing adequate pretermination and post-termination proceedings would not change that fact.

ATTORNEY'S FEES

Lastly, Koopman argues the court was in error to deny his motion for attorney's fees. Koopman contends he was a prevailing party by proving the District violated his due process rights, and that he vindicated an important constitutional right. The Civil Rights Attorney's Fees Award Act, 42 U.S.C. Sec. 1988(b), permits a court to award attorney's fees to the prevailing party in a Sec. 1983 action. It is clear that under Farrar v. Hobby, Koopman is a prevailing party because he was awarded nominal damages. --- U.S. ----, ----, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). But 42 U.S.C. Sec. 1988(b) also states the prevailing party is only to receive "a reasonable attorney's fee." Thus, the inquiry here, as in Farrar, involves determining what would be a reasonable attorney's fee.

In Farrar, the Court stated that " 'the most critical factor' in determining the reasonableness of a fee award 'is the degree of success obtained.' " Id., 113 S.Ct. at 574 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). The Court offered the general conclusion that it is usually appropriate to deny fees when only nominal damages were awarded. However, the Supreme Court in City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 2694, 91 L.Ed.2d 466 (1986), observed:

[t]he amount of damages a plaintiff recovers is certainly relevant to the amount of attorney's fees to be awarded under Sec. 1988. It is, however,...