Sheppard v. Riverview Nursing Center, Inc., 95-1091
| Decision Date | 27 June 1996 |
| Docket Number | No. 95-1091,95-1091 |
| Citation | 88 F.3d 1332 |
| Parties | 71 Fair Empl.Prac.Cas. (BNA) 218, 68 Empl. Prac. Dec. P 44,111, 65 USLW 2019 Theresa L. SHEPPARD, Plaintiff-Appellee, v. RIVERVIEW NURSING CENTER, INCORPORATED, Defendant-Appellant. Equal Employment Opportunity Commission, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Frank S. Astroth, Astroth, Serotte, Rockman & Wescott, Baltimore, Maryland, for Appellant. Bradford W. Warbasse, Donald N. Rothman, Gordon, Feinblatt, Rothman, Hoffberger & Hollander, Baltimore, Maryland, for Appellee. Karen Marie Moran, Office of General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae. ON BRIEF: Jeffrey Rockman, Astroth, Serotte, Rockman & Wescott, Baltimore, Maryland, for Appellant. James R. Neely, Jr., Deputy General Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Office of General Counsel, Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae.
Before WILKINSON, Chief Judge, and WILLIAMS and MICHAEL, Circuit Judges.
Vacated and remanded by published opinion. Chief Judge WILKINSON wrote the majority opinion, in which Judge WILLIAMS joined. Judge MICHAEL wrote a dissenting opinion.
This appeal requires us to examine the district court's award of attorney's fees in a mixed-motive employment discrimination case. Appellee Theresa L. Sheppard prevailed in a mixed-motive claim against appellant Riverview Nursing Center ("Riverview"), but Riverview established that it would have reached the same decision even absent any discrimination. In such cases, the Civil Rights Act of 1991 provides that a court "may" grant attorney's fees. 42 U.S.C. § 2000e-5(g)(2)(B).
The district court granted Sheppard declaratory relief, costs of $167.02, and attorney's fees in the amount of $40,000. Riverview appeals the fee award. Because the district court failed to appreciate its full discretion under the statute regarding whether to grant attorney's fees, and because we believe that certain concerns of proportionality should inform that inquiry, we remand for reconsideration of the fee award.
In September 1993, Sheppard filed a gender discrimination claim against Riverview under Title VII, alleging that she was laid off because of her pregnancy. 42 U.S.C. § 2000e(k). Five weeks after initiation of the suit, Riverview tendered a $5,000 settlement offer, which Sheppard rejected. A jury trial was held beginning on October 31, 1994.
Following trial, the district court instructed the jury in accordance with the standards applicable to mixed-motive claims under the Civil Rights Act of 1991. 1 The jury was asked to determine whether Sheppard's pregnancy was a "motivating factor" in the decision to lay her off. 42 U.S.C. § 2000e-2(m). The court then asked the jury to decide whether, even if discrimination had been a motivating factor, Riverview would have discharged Sheppard in any case for nondiscriminatory reasons. See 42 U.S.C. § 2000e-5(g)(2)(B).
The jury answered both questions in the affirmative, determining that discrimination had motivated Riverview's decision, but that Sheppard would have been laid off for legitimate reasons. Before the Civil Rights Act of 1991, such a finding would have insulated Riverview from liability. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). After the Act, however, a plaintiff is eligible for limited recovery in such situations--declaratory relief, certain types of injunctive relief, and attorney's fees and costs--as is provided for in 42 U.S.C. § 2000e-5(g)(2)(B):
On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court--
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
Pursuant to these provisions, the district court awarded Sheppard a declaratory judgment, but denied injunctive relief because it found insufficient danger of a continuing violation.
Sheppard then filed a motion requesting attorney's fees of $40,000 and costs of $4,509.74. 2 Riverview challenged the fee request, arguing that under Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), a civil rights plaintiff who prevails as a technical matter but who receives only nominal damages should not recover any attorney's fees. The district court disagreed, reasoning that Farrar was based on 42 U.S.C. § 1988, whereas Sheppard's request arose from 42 U.S.C. § 2000e-5(g)(2)(B). The latter provision already limits the types of available relief, the court concluded. As a result, hinging the recovery of attorney's fees on the degree to which plaintiffs secure relief would, in the court's view, effectively nullify the availability of fees.
Riverview also challenged the fee award under Rule 68 of the Federal Rules of Civil Procedure, which requires a plaintiff who rejects a settlement offer to pay her own post-offer "costs" if the offer turns out to be more favorable than her eventual recovery. Riverview asserted that its settlement offer of $5,000 exceeded Sheppard's recovery, and that the $40,000 attorney's fee award thus should be reduced by the amount of fees attributable to post-offer services. The district court disagreed, ruling that under the language of 42 U.S.C. § 2000e-5(g)(2)(B), attorney's fees are not part of the post-offer "costs" subject to Rule 68. Marek v. Chesny, 473 U.S. 1, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985). The court did, however, reduce Sheppard's recovery of costs from $4,509.74 to $167.02 pursuant to Rule 68. Riverview appeals the $40,000 fee award.
The district court apparently believed that an award of attorney's fees was mandatory in mixed-motive cases, and that Farrar v. Hobby 's concerns with the relationship between the fees and the degree of success achieved in the underlying litigation had no application here. To the contrary, we believe that the award of fees is discretionary under 42 U.S.C. § 2000e-5(g)(2)(B), and that concerns of proportionality do play a part in the analysis.
The statute under which the attorney's fees were awarded in this case, 42 U.S.C. § 2000e-5(g)(2)(B), provides that a court "may" grant attorney's fees. The word "may" means just what it says: that a court has discretion to award (or not to award) attorney's fees. The terms of § 2000e-5(g)(2)(B) make evident that the granting of fees is discretionary rather than mandatory--the provision later states that a court "shall" not award damages or require reinstatement. Plainly, if Congress had wished to require recovery of attorney's fees, it would have provided that courts "shall" grant fees instead of that they "may" do so. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983); Persinger v. Islamic Republic of Iran, 729 F.2d 835, 843 (D.C.Cir.) ("When Congress uses explicit language in one part of a statute ... and then uses different language in another part of the same statute, a strong inference arises that the two provisions do not mean the same thing."), cert. denied, 469 U.S. 881, 105 S.Ct. 247, 83 L.Ed.2d 185 (1984).
Here, the district court appeared to misperceive the discretionary nature of its inquiry, assuming instead that an award of attorney's fees was essentially mandatory. Its analysis of Sheppard's motion for attorney's fees dealt primarily with whether the amount of fees requested was reasonable, not with whether fees should be granted in the first instance. In the court's view, a "wholesale denial of fees ... is completely unjustified and flies in the face of the statute making such fees available." Sheppard v. Riverview Nursing Centre, 870 F.Supp. 1369, 1381 (D.Md.1994). But a denial of fees only "flies in the face" of a statute that requires courts to award fees, not a statute, like § 2000e-5(g)(2)(B), that leaves the determination to a court's discretion. By its nature, the latter sort of provision contemplates that courts may decide not to grant fees in particular cases.
The decision whether to award fees under § 2000e-5(g)(2)(B) is thus plainly a discretionary one. We turn now to an examination of the considerations that should inform a court's exercise of that discretion.
In Farrar v. Hobby, 506 U.S. at 103, 113 S.Ct. at 569, the Supreme Court discussed the factors that should guide a court's determination of whether to award attorney's fees. In that case, Dale Farrar sought $17 million in damages in a § 1983 action, but ultimately received only one dollar as a nominal award. The district court nevertheless granted him $280,000 in attorney's fees under 42 U.S.C. § 1988, which states that a court "may" in its discretion award to a "prevailing party" in a civil rights action a "reasonable attorney's fee." The Supreme Court held that Farrar qualified as a "prevailing party" so as to be eligible for attorney's fees, but that considerations of proportionality should guide the decision whether to award fees. Given the minimal success achieved by Farrar, the Court found, the appropriate fee recovery in the circumstances was "no fee at all." Farrar, 506 U.S. at 115, 113 S.Ct. at 575.
The same logic should bar recovery of attorney's fees here, Riverview asserts, because Sheppard only obtained declaratory relief. The district court rejected this argument on the ground that Farrar construed 42 U.S.C. § 1988, whereas in this case the fee award arises under 42 U.S.C....
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