Walston v. School Bd. of City of Suffolk

• Decision Date: 02 December 1977
• Docket Number: Nos. 76-2433 and 76-2435,s. 76-2433 and 76-2435
• Citation: 566 F.2d 1201
• Parties: 16 Fair Empl.Prac.Cas. 728, 15 Empl. Prac. Dec. P 7950 Syvalius WALSTON, Jr., George W. Crocker, Clara Lee, Eula Y. Baker, Evelyn J. Jones, Darline C. Boone, Dorothy D. Mozelle, Brenda S. Williams, Thelma L. Corprew, Queen H. Malone, Celestine E. Whitehead, Roumaine H. Howell, Josephine A. Gatling, Appellants, v. SCHOOL BOARD OF the CITY OF SUFFOLK and Robert A. Wood, Superintendent of Schools of the City of Suffolk, Appellees. UNITED STATES of America, Appellant, v. SCHOOL BOARD OF the CITY OF SUFFOLK, and Robert A. Wood, Superintendent of Schools of the City of Suffolk, and Audrey C. Selby, Robert E. Parker, Jr., Parke Ashburn, Jr., Thaxton M. Brown, Sam A. Chilton, Jr., and Roger Knight, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1201

566 F.2d 1201

16 Fair Empl.Prac.Cas. 728, 15 Empl. Prac.

Dec. P 7950

Syvalius WALSTON, Jr., George W. Crocker, Clara Lee, Eula Y.

Baker, Evelyn J. Jones, Darline C. Boone, Dorothy D.

Mozelle, Brenda S. Williams, Thelma L. Corprew, Queen H.

Malone, Celestine E. Whitehead, Roumaine H. Howell, Josephine A. Gatling, Appellants, v. SCHOOL BOARD OF the CITY OF SUFFOLK and Robert A. Wood,

Superintendent of Schools of the City of Suffolk,

Appellees.

UNITED STATES of America, Appellant, v. SCHOOL BOARD OF the CITY OF SUFFOLK, and Robert A. Wood,

Superintendent of Schools of the City of Suffolk, and Audrey

C. Selby, Robert E. Parker, Jr., Parke Ashburn, Jr., Thaxton

M. Brown, Sam A. Chilton, Jr., and Roger Knight, Appellees.

Nos. 76-2433 and 76-2435.

United States Court of Appeals, Fourth Circuit.

Argued June 9, 1977.

Decided Dec. 2, 1977.

James W. Benton, Jr., Richmond, Va. (S. W. Tucker, Henry L. Marsh, III, Hill, Tucker & Marsh, Richmond, Va., Jack Greenberg, New York City, on brief), for appellants in 76-2433.

Mark L. Gross, Atty., Dept. of Justice (Frank D. Allen, Jr., Atty., Dept. of Justice, J. Stanley Pottinger, Asst. Atty. Gen., Washington, D.C., William B. Cummings, U. S. Atty., Alexandria, Va., on brief), for appellant in 76-2435.

Frederick T. Gray, Richmond, Va. (Frederick T. Gray, Jr., Williams, Mullen & Christian, Richmond, Va., William Jones, City Atty., Suffolk, Va., on brief), for appellees in 76-2433 and 76-2435.

Before WINTER, BUTZNER and WIDENER, Circuit Judges.

WINTER, Circuit Judge:

In Walston v. County School Board of Nansemond County, Va., 492 F.2d 919 (4 Cir. 1974), we reversed an order of the district court denying injunctive relief, reinstatement and back pay to certain black teachers formerly employed by the County School Board of Nansemond County, Virginia, and remanded the case for further proceedings. ^* One of our principal holdings was that teachers who were discharged because they had failed to obtain a score of at least 500 on the Weighted Common Section of the National Teachers Examination (NTE) had been discharged for racially discriminatory reasons. On remand, we directed that (1) teachers whose employment was terminated because they failed to make a score of at least 500 on NTE "must be reinstated with back pay and their damages, if any, settled"; (2) "(i)njunctive relief must be granted in such terms as will insure that further discrimination in the employment and retention of teachers . . . will not recur"; and (3) the district court "may grant such other and further relief as it deems necessary and appropriate." 492 F.2d at 927.

On remand, the district court, inter alia, (1) entered an injunction restraining the defendants from making use of NTE "as a sole basis" for employment, reemployment or termination of a teacher; (2) denied reinstatement and back pay to Syvalius Walston and Elizabeth Pegram upon finding that neither was dismissed because of his race, and, additionally with respect to Pegram, concluding that she could not recover because the United States lacked authority to assert her claim; and, (3) awarded counsel fees to counsel for successful plaintiffs albeit in an amount considerably less than that requested. United States v. School Board of City of Suffolk, 418 F.Supp. 639 (E.D.Va.1976). The correctness of these rulings is challenged by plaintiffs in this appeal. We affirm in part, reverse in part, and remand for further proceedings.

I.

The injunction entered by the district court provided that

the defendants . . . are hereby permanently enjoined from discriminating on the basis of race or color in the employment of teachers and other personnel in the City of Suffolk School System. The defendants are further enjoined from making use of the National Teachers Examination as a sole basis for employment, re-employment or termination of services of any teacher or other personnel in the school system.

The prohibition against use of NTE was that it not be the sole criterion for employment, reemployment or termination. Thus, the injunction would permit NTE to be considered by the defendants in connection with employment, reemployment or termination of services of any teacher or other personnel as a criterion provided that it was not the sole one.

The injunction entered by the district court does not comport with our previous opinion and directions on remand. In the prior case, we stated:

What we hold today is not to say that NTE cannot be utilized under any circumstances as one possible type of "objective criteria" under the rule in (Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (4 Cir. 1966). However, it cannot be used as a tool of discrimination; it cannot be used without proper validation studies and job analyses under the rule in (Moody v. Albemarle Paper Company, 474 F.2d 134 (4 Cir. 1973)). Nor can it be administered capriciously in derogation of the guidelines promulgated by the (Educational Testing Service) so as to have a racially disparate impact (emphasis added). 492 F.2d at 927.

In order to make the injunction conform to what we decided, it must be modified to enjoin any future use of NTE "without proper validation studies and job analyses." We therefore vacate the injunction entered by the district court and direct it to be reentered with the modification we have indicated. ^**

II.

The district court made a general award of attorneys' fees to private counsel who represented successful plaintiffs and a specific award to private counsel who represented the plaintiff Howell. For plaintiffs whose claims for reinstatement and back pay were settled, counsel were awarded twenty percent of the stated settlements, and counsel for Howell, whose case was tried, was allowed twenty-five percent of the total damages recovered. In making these awards, the district court took note of the number of hours claimed by plaintiffs' counsel and the fact that if an allowance of compensation were made on an hourly rate, it would greatly exceed the allowance based upon a percentage of the total recovery. The district court concluded, however, that any allowance of reasonable attorneys' fees must be proportionate with the recovery as to each plaintiff, lest the litigation be conducted primarily for the benefit of attorneys. 418 F.Supp. at 648-49 and n.6.

Thus, the only factor employed by the district court in awarding counsel fees was the amount of the plaintiffs' recoveries, either by settlement or assessment of damages. The case, however, was one involving the use of NTE; it presented a novel and difficult question, and the right to reinstatement was an issue as well as recovery for lost earnings. Counsel submitted a detailed statement of services rendered showing a total of 984.25 hours over the course of the litigation. The total amount awarded by the district court was only $10,407.40. Unless it is shown that counsel's computation of time was inflated or that the time expended was unnecessary, the fees allowed represented a rate only slightly in excess of $10 per hour, and this rate is less than the minimum rate fixed by the Criminal Justice Act.

We think that the district court's award of counsel fees was inadequate. The inadequacy stems from the sole reliance on the amount of monetary recovery. Other factors should have been considered and given weight. The factors which are relevant to the determination of a reasonable fee are identified and collected in Disciplinary Rule 2-106(B), ABA Code of Professional Responsibility (1969). These factors have been recognized and discussed in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corporation, 487 F.2d 161 (3 Cir. 1973); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5 Cir. 1974); and Detroit v. Grinnell Corp., 495 F.2d 448 (2 Cir. 1974). In the instant case the significant ones appear to be the factors of time and labor, the customary fee in the locality where the services were rendered, the novelty and difficulty of the questions involved and the skill requisite to provide proper representation, the amount of money involved, and the results obtained.

While we think that a more substantial award must be made, we decline to fix the amount ourselves, because it may be necessary to receive additional evidence with respect to the need for the number of hours of service claimed by plaintiffs' counsel, the prevailing rates of fees in the community in which the services were rendered, and other factors which may be in contest. We therefore direct that a new award be made by the district court in accordance with the views we have expressed.

III.

We turn next to the claims of the plaintiffs Syvalius Walston and Elizabeth Pegram. Walston was represented by private counsel and Pegram's claim was asserted by government counsel.

With respect to Walston, there was evidence having racial implications which related to the reasons for his discharge. There was substantial evidence, however, that he was discharged for noninvidious reasons. While we give no indication how, if we were triers of the fact, we would decide Walston's case, we cannot conclude that the findings of the district court that "it was (not) the race of Walston, rather than the incidents (in which he had been involved), which caused Walston's employment to be terminated" and that "the school board has met its burden of showing that Walston was not dismissed because of his race" were clearly erroneous. 418 F.Supp. at 650. We therefore affirm the denial of reinstatement and denial of an award for back wages with respect to Walston.

With regard to Pegram, we consider first defendants' contention that, as concluded by the district court, Pegram is precluded from recovery by the lack of authority of the United States to proceed on her behalf. This issue was the subject of extended consideration by the district court and it is one which has been argued broadly by the parties. We conclude...