Johnnye ALEXANDER, Plaintiff-Appellee,
v.
GERHARDT ENTERPRISES, INC., an Illinois Corporation, d/b/a
Bailey's Professional Beauty Supply, Defendant-Appellant.
No. 93-3110.
United States Court of Appeals,
Seventh Circuit.
Argued Sept. 12, 1994.
Decided Nov. 14, 1994.
Eugene J. Schiltz, Kenneth Philip Ross (argued), Coleman & Associates, Chicago, IL, for plaintiff-appellee.
Walter Soroka, Jerome Rotenberg (argued), Rosenfeld, Rotenberg, Hafron & Shapiro, Chicago, IL, for defendant-appellant.
Before GODBOLD,* FLAUM and ROVNER, Circuit Judges.
FLAUM, Circuit Judge.
Plaintiff, Johnnye Alexander ("Alexander"), a black woman, filed this employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e. She alleged that the defendant corporation, Gerhardt Enterprises ("Gerhardt"), terminated her employment on account of her race and in retaliation for her opposition to her employer's discriminatory conduct. After the enactment of the Civil Rights Act of 1991 ("1991 Act"), 42 U.S.C. Sec. 1981a, Alexander filed an amended complaint that added an additional count under 42 U.S.C. Sec. 1981, demanded a jury trial, and requested additional relief on the initial Title VII count. The district court dismissed the Sec. 1981 count and struck the claims for compensatory and punitive damages. After a two day trial the jury returned a verdict for Alexander and awarded her $10,000 in back wages. The trial judge recognized that if the 1991 Act was not given retroactive application, Alexander would have had no right to a jury trial. Consequently, the district court announced its own independent findings. On July 16, 1993, the district court entered judgment for Alexander based on its own findings and not the jury verdict, awarding back wages, costs and attorney's fees. On August 3, 1993, the court amended the July 16 judgment to reflect a jury verdict instead of a decision by the court. The defendant appeals, challenging the trial by jury, amount of attorney's fees, and the sufficiency of the evidence. We affirm the district court's decision of July 16, 1993 and vacate the August 3, 1993 order.
I.
Gerhardt Enterprises, an Illinois corporation operating under the trade name "Bailey's Professional Beauty," sells and distributes hair styling and cosmetic products to professional hair styling salons and cosmetologists. Gerhardt also provides educational programs and seminars to beauty professionals. Gerhardt hired Alexander on March 29, 1989, as an educational coordinator for its professional education program.
On July 7, 1989, Alexander, as part of her duties, attended a small company meeting at one of the company's stores. Also present at the meeting were Dominic Marella ("Marella"), Gerhardt's educational director and Alexander's direct supervisor; Loretta Masson ("Masson"), Marella's assistant; Jerome Sikorski ("Sikorski"), defendant's director of wholesale operations and a member of its core management team; Walter Gerhardt, Jr. ("Gerhardt, Jr."), Gerhardt's vice-president; and three regional managers. Walter Gerhardt, Sr. ("Gerhardt, Sr.") was also present during portions of the meeting. Alexander was the only black person at the meeting. During the meeting Marella discussed an education event he had recently attended which had been conducted by a hair styling educator who was black. While discussing a procedure related to a type of curl on Caucasian hair, Marella commented that it was a very simple process and "if a nigger can do it, anybody can do it." At trial, the parties offered conflicting testimony as to whether Marella was offering his own opinion or simply quoting the black educator. After a brief pause in the meeting and several uncomfortable moments, the meeting continued.
When the meeting concluded, everyone except Alexander went to lunch. After lunch Marella apologized in private to Alexander for making the statement. Alexander requested that he make a public apology. The next day Marella wrote a memorandum to Gerhardt, Jr. informing him of the particular incident. On July 26, 1989, Alexander responded to this memorandum with her own memorandum to Marella, with copies to Gerhardt Sr., Gerhardt, Jr. and Sikorski. Alexander explained in this memorandum that she had been "hurt deeply" by the racist slur and requested a public apology. After receiving the memorandum Sikorski, the Gerhardts and Marella met to discuss the situation.
The following day, on July 27, Sikorski and Marella met with Alexander after an education department meeting. Sikorski informed Alexander that she would have to attend an event in St. Louis on a day he had previously agreed to let her have off to visit her mother in Tennessee. Alexander indicated she would comply with the request. Sikorski then commented that Alexander did not seem happy with her job and that they were not happy with her performance. Sikorski, concluding that it would be best if the employment relationship was terminated, fired Alexander. After receiving her letter of termination, Alexander refused to sign it.
On November 1, 1989, Alexander filed a pro se discrimination charge with the Illinois Department of Human Rights, which was automatically cross-filed with the Equal Employment Opportunity Commission. In December, 1989, Sikorski sent a letter to the managers of Gerhardt's twenty three retail stores, asking them to summarize any problems or difficulties they may have had with Alexander. Sikorski instructed his managers not to date these responses. After receiving the replies, Sikorski backdated the three negative evaluations of Alexander.
Alexander received her Notice of Right to Sue from the EEOC on July 19, 1991. On July 25, 1991, she filed a single count Complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e, alleging that she was terminated because of her race and in retaliation for her opposition to Marella's comment. After the enactment of the Civil Rights Act of 1991, Alexander moved for and, over the defendant's objection, was granted leave to file an amended complaint and demand for a jury trial. The First Amended Complaint added a second count under 42 U.S.C. Sec. 1981 and sought additional compensatory and punitive damages available under the 1991 Act on the Title VII count. On May 14, 1992, the trial court dismissed the second count in light of this Court's decision in Mozee v. American Commercial Marine Service Co.,
On September 17, 1992, after a two day trial, the jury returned a verdict for $10,000 in back wages. After dismissing the jury, the district court announced its own findings. The court, recognizing the then undecided question of the retroactivity of the 1991 Act as it pertained to the availability of a jury trial in Title VII cases, issued independent findings of fact and conclusions of law. The judge concluded that Alexander was fired not because of her race, but in retaliation for her complaint. On July 16, 1993, after further briefing on additional back wages, front wages and attorney's fees, the court entered judgment based on its own decision, consistent with an "advisory" jury. The court awarded $10,000 in back wages, $3,294.95 in costs and $58,480.87 in attorneys' fees and ordered Gerhardt to provide Alexander with a neutral reference and to refrain from making any disparaging comments about her job performance. On August 3, 1993, the court, on its own motion, amended its July 16 judgment to reflect a jury verdict instead of a bench decision and deleted the word "advisory" from the July 16 memorandum opinion. Gerhardt appeals the use of an advisory jury, the amount of the attorneys' fees and the sufficiency of the evidence.
II.
We first address the district court's use of an advisory jury. The 1991 Act created a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964. Rev.Stat. Sec. 1977A(a), 42 U.S.C. Sec. 1981a(a), as added by Sec. 102 of the 1991 Act, Pub.L. 102-166, 105 Stat. 1071. Unlike the 1964 Civil Rights Act, which gave no right to a jury trial, see Lehman v. Nakshian,
We commend the late Magistrate Judge Weisberg's efforts to deal with the jury trial issue in the face of the legal uncertainty of the retroactivity of the 1991 Act. Alexander's trial took place on September 15 and 16, 1992. On September 17, 1992, after the jury verdict, the district court dismissed the jury and set forth its own independent findings of fact and conclusions of law. The district court recognized the undecided retroactivity issue and the procedural problems it posed.1 Specifically, the district court wanted to avoid a retrial if in fact the 1991 Act was not retroactive and therefore precluded a jury trial. The district court noted that "[i]n order to guard against the need for a retrial if it turns out there is no jury trial of right for a case with this terminology, I expect to now announce my own findings of fact and conclusions of law so that those will be in the record and will be available for any appropriate action by any other court, if there is an appeal." The district court then independently concluded that although Alexander was not fired because of her race, she was fired because of her complaint. This retaliatory discharge, the judge held, violated Sec. 704(a) of the Civil Rights Act. 42 U.S.C. Sec. 2000e.
Although Alexander had no right to a jury trial, the district court had the authority to empanel an advisory jury. Federal Rule of Civil Procedure 39(c) governs requests for jury trials in cases in which the parties are not entitled to a jury trial as of right. Rule 39(c) explicitly provides that "[i]n all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury...." Fed.R.Civ.P. 39(c). Convening an advisory jury in this case would have been proceeding on a path subsequently recognized and approved by this Court in Townsend v. Indiana University,
In any event, Gerhardt waived any objection to the use of an advisory jury by failing to raise this issue on appeal. Neither Gerhardt's briefs (primary or reply), nor oral arguments made any mention of the possible impropriety in connection with the notice or the empaneling of an advisory jury.2 Instead, Gerhardt's sole ground for challenging the use of the jury is Mojica v. Gannett Co.,
The instant case is distinguishable from Mojica in two important regards. First, unlike Mojica, the district court here made independent findings of fact and conclusions of law. The judge only utilized the jury in its advisory capacity and not as the determinative trier of fact. Second, unlike Mojica, this verdict is hardly "beyond rescue." In that the only damages awarded were for back pay, no confusion exists as to the type and quantity of damages. The judge determined the underlying liability and damages through his independent findings of fact and conclusions of law. Here, there is no need for a retrial.
Gerhardt argues that the ultimate decision of the district court was from the jury and not the judge. To the extent that the trial judge attempted to convert the advisory jury into an actual jury, however, we vacate that order. In its initial July 16, 1993 judgment order, the district court concluded that it "agrees with what it interprets as the advisory jury's determination that under these circumstances $10,000 is an adequate award of back pay." On August 3, 1993, the district court attempted to amend this judgment to "reflect a jury verdict instead of a decision by the court" and deleted the word "advisory" before the word "jury" in the July 16, 1993 ruling. This August 3, 1993 order, however, was inappropriate in that the applicable law, the 1964 Civil Rights Act, gave no right to a jury trial. Furthermore, the 1991 Act, since not applied retroactively, gives no right to a jury trial in these circumstances. The district court judge's attempt to recognize an actual jury verdict was improper. Therefore, we vacate those portions of the district court's August 3, 1993 orders and reinstate the orders and judgment of July 16, 1993, based on the court's own findings of fact and conclusions of law.
III.
Gerhardt also challenges the district court's award of attorney's fees to Alexander. Alexander initially sought $78,334.50 in attorney's fees and $3,294.95 in costs. The district court, after reducing Alexander's fee request by 25% due to over-preparation and excess time spent by her lawyers, awarded Alexander $59,580.87 in fees and $3,294.95 in costs.
Congress has provided that a "prevailing party" in a Title VII action may recover its "reasonable attorney's fee" as part of costs. 42 U.S.C. Sec. 2000e-5(k). A district court's award of attorney's fees will be disturbed only if the court commits an error of law in the computation or has abused its discretion in calculating the amount. Tomazzoli v. Sheedy,
A district court judge's discretion, however, is not absolute. The Supreme Court and this Court have fashioned basic standards to guide district court judges. The minimal requirement in order to recover attorney's fees is that the plaintiff be regarded as a "prevailing party." In order to be considered a "prevailing party" in a civil rights action, a plaintiff must obtain at least some relief on the merits. Farrar v. Hobby, --- U.S. ----, ----,
The only other consideration is the reasonableness of the fees. In determining the reasonableness of attorney's fees, this court has rejected the notion that the fees must be calculated proportionally to damages. See Wallace v. Mulholland,
While the Supreme Court has never explicitly rejected the proportionality approach, it effectively did so in City of Riverside v. Rivera,
Gerhardt contends that Alexander's attorneys overprepared this case and spent excessive time on a relatively simple matter. Perhaps if we were standing in the district court's shoes we might agree with Gerhardt's claim. However, this Court has made clear that "if ever there was a case for reviewing the determinations of a trial court under a highly deferential version of the 'abuse of discretion' standard, it is in the matter of determining the reasonableness of the time spent by a lawyer on a particular task in a litigation in that court." Ustrak,
IV.
Finally, Gerhardt challenges the sufficiency of the evidence supporting the district court's conclusion that Alexander was fired in retaliation for her filing the complaint. Section 704 of Title VII makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. Sec. 2000e-3(a). In order to establish the prima facie case of retaliation under McDonnell Douglas Corp. v. Green,
On review, this Court will not overturn the district court's findings regarding the retaliation claims unless those findings are clearly erroneous. Anderson v. Bessemer City,
Here, the district court's findings are well supported by the record. Alexander established her prima facie case of retaliatory discharge. The record reflects that Alexander engaged in statutorily protected expression. Her July 26, 1989 memorandum clearly indicated her negative emotional reaction to Marella's comment. The professional and noninflammatory memorandum set out her position as well as her requested relief. Furthermore, the copies she sent to Gerhardt Jr., Gerhardt Sr., and Sikorski served to notify her employers of her problems with Marella's comments. Gerhardt argues that Alexander's expression is not protected because she did not expressly request that Marella cease making racist slurs. Both the tone and content of her memorandum make it abundantly clear, however, that her intent was not only to receive a public apology, but also to prevent similar comments in the future. We do not require an employee to explicitly implore her employer to stop engaging in racist slurs. In settings such as this, the notification and complaint about the offending incident suffice.
Gerhardt also argues that Marella's single racist slur did not amount to a discriminatory "practice" and therefore Alexander could not make out a successful claim of opposing an unlawful employment practice. Gerhardt is incorrect. The conduct a plaintiff opposes need not actually violate Title VII. Dey,
Second, Alexander suffered an adverse action by her employer. Gerhardt fired Alexander after her complaint. Despite conflicting testimony on the matter, the district court rejected Gerhardt's contention that Alexander agreed to the termination of the employment relationship, and concluded that Gerhardt did in fact fire Alexander. After the July 27, 1989 meeting, Sikorski approached Alexander and told her that she "didn't seem to be happy with the job, and they weren't happy with [her] performance." Sikorski then stated that it would be best if they terminated their relationship. Furthermore, the record indicates that Marella suggested that Gerhardt fire Alexander. Additionally, Sikorski's attempts to back date Alexander's evaluations and create the appearance that Alexander was terminated because of her incompatibility, further support the position that she was in fact terminated and that Gerhardt now was scrambling to concoct a legitimate reason for the termination.
Finally, there is a causal link between the protected expression and the adverse action. This Court has concluded that a plaintiff may establish a link through evidence that the discharge took place on the heels of the protected activity. Dey,
In response to Alexander's prima facie case, Gerhardt succeeded in articulating a legitimate nondiscriminatory reason for Alexander's discharge--unhappiness with her performance, her incompatibility, and complaints about her work.4 Several witnesses testified that Alexander had missed meetings. She also failed to submit written reports on time which were part of her job responsibilities and requested by her supervisors. Gerhardt presented evidence that Alexander did not fulfill all of the responsibilities which her job required and that the company had received complaints about Alexander from several store managers. The defense also presented evidence that Alexander had encountered employment difficulties with previous employers. Further, the defense presented evidence that Alexander's supervisors were displeased with her work, that Alexander was no longer happy with her job, and that her work reflected this discontent.
Despite Gerhardt's articulation of a legitimate non-discriminatory reason for the termination, the record adequately supports the district court's implicit finding that Gerhardt's proffered reasons were pretextual and that its actual reasons were retaliatory. First, Alexander produced evidence that she was in fact performing her duties adequately. Several witnesses testified that their largest complaint with Alexander's work was the quality of coffee she made for her coworkers. Evidence of satisfactory job performance by itself is "insufficient to raise a question of fact about an employer's honest assessment of inadequate performance." Dey,
Thus, Alexander satisfied her prima facie case of retaliatory discharge. Although Gerhardt articulated a legitimate non-discriminatory reason for the termination, Alexander produced sufficient evidence that Gerhardt's reasons were pretextual and that the true motive was retaliatory. Since the district court's findings were supported by the record and not clearly erroneous, we hold that there was no insufficiency of evidence.
For the foregoing reasons we VACATE only the district court's order of August 3, 1993 and AFFIRM the remainder of the decision.
Notes
The Honorable John C. Godbold of the United States Court of Appeals for the Eleventh Circuit is sitting by designation
The district court entered judgment on July 16, 1993, and amended this judgment on August 3, 1993, prior to both this court's decision in Mojica v. Gannett Co.,
Indeed, while it may have been the case, it cannot be conclusively determined from the record that the Magistrate Judge notified the parties prior to trial that he intended to convene an advisory jury under Rule 39(c). In this regard, we acknowledge the approach of other circuits which indicate that the failure to provide such notice is reversible error, as the parties may have engaged in a different trial strategy had they known of the jury's advisory capacity. See Thompson v. Parkes,
Gerhardt's brief simply notes this Court's decision in Mojica. It fails to discuss why Mojica applies to the instant case and how the uses of the jury are similar
Gerhardt initially argued that Alexander was not fired, but rather terminated her relationship voluntarily. Gerhardt then argued, in the alternative, that if the court concluded that Alexander was in fact terminated, it was because of poor job performance and not in retaliation for her complaint