The opinion
In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-1272 & 99-3475
LLOYD BRYANT, DESMOND BUTLER,
DORIS BYRD, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 1890--Robert W. Gettleman, Judge.
Argued September 30, 1999--Decided January 14, 2000
Before HARLINGTON WOOD, JR., COFFEY, and EVANS,
Circuit Judges.
HARLINGTON WOOD, JR., Circuit Judge. Plaintiffs
are forty-four African-American or Latino present
or former sergeants of the Chicago Police
Department. Plaintiffs failed to be promoted to
lieutenant after taking the 1994 police
lieutenant examination. Seven hundred sixty-five
police sergeants took the examination of which
184 (24%) were African-American and 55 (7%) were
Hispanic. The Police Department made 108 rank-
order promotions based on the 1994 examination,
granting promotions to those officers who
obtained the highest 108 scores on the
examination. Of the 108 officers promoted, five
were African-American and one was Hispanic.
Minority promotions, therefore, represented
slightly less than 6% of the total number of
promotions granted. It is undisputed that the
1994 examination had a disparate impact on
minority candidates, and the parties have
stipulated that this statistical evidence
constitutes a prima facie case of discrimination.
In 1995, the plaintiffs filed a complaint
against the City of Chicago (the "City"),
alleging that the City deprived them of equal
employment opportunities in violation of Title
VII of the Civil Rights Act of 1964, as amended
42 U.S.C. sec. 2000e, et seq. No claim was made
by plaintiffs, however, that the City
intentionally discriminated against them because
of their minority status. Plaintiffs sought to
preliminarily enjoin the City from making any
rank-order promotions based on the 1994
lieutenant examination. The preliminary
injunction was denied by the district court on
the basis that plaintiffs had failed to establish
either irreparable harm or the lack of an
adequate remedy at law. The district court also
found the balance of harms weighed against the
granting of the preliminary injunction.
In a Title VII disparate impact case, the
plaintiff bears the initial burden of
establishing a prima facie case by showing that
the promotional method in question had an adverse
impact on minorities. If the plaintiff makes this
required initial showing, the burden then shifts
to the employer who must prove that the
evaluation method is valid by showing that it is
"job related" and "consistent with business
necessity." 42 U.S.C. sec. 2000e-2k(1)(A)(i). The
evaluation method may be shown to be job related
under any one of three tests: criterion related,
content validity, or construct validity. Uniform
Guidelines on Employee Selections Procedures, 29
C.F.R. sec. 1607.5B. If the employer succeeds in
validating the evaluation method, the burden
shifts back to the plaintiff to prove that there
was another available method of evaluation which
was equally valid and less discriminatory that
the employer refused to use. 42 U.S.C. sec.
2000e-2k(1)(A)(ii); see also Albemarle Paper Co.
v. Moody, 422 U.S. 405, 425 (1975).
This case was tried in a bench trial in March
1997. As previously mentioned, the City conceded
an adverse impact on minority candidates because
of their poor showing on the examination. In a
thorough Memorandum Opinion and Order issued on
June 30, 1998, the district court found that the
1994 examination was job related under the
content validity approach, but agreed with the
plaintiffs that the City had a less
discriminatory but equally valid method of
promotions available which it did not use, namely
a combination of rank-order promotions with what
are referred to as "merit promotions," a process
which we shall examine in more detail shortly.
When the court considered what relief was
available under those circumstances, it found the
record insufficient and set an additional
hearing. That hearing resulted in a second
Memorandum Opinion and Order issued on September
16, 1998. The court held that, in view of the
equally valid but less discriminatory method
which the City had not used, the court had the
opportunity to broadly exercise its discretion in
granting relief as outlined in 42 U.S.C. sec.
2000e-5(g). The court, therefore, awarded some
relief to sergeants other than the named
plaintiffs. The court found the City’s failure
directly impacted thirteen sergeants, minority
and non-minority, who had taken the 1994
examination. These thirteen officers had been
chosen for promotion to lieutenant under the
merit promotion plan, but had not been
promoted./1 Only one of these officers, Sergeant
Raymond, is a plaintiff in the present case.
The court ordered the City to promote the
thirteen directly injured sergeants to
lieutenants and to award them differential back
pay and other benefits from April 1995, the time
when they had been passed over for promotion.
Exceptions were made in individual cases where
the candidate for some reason was no longer
eligible for promotion./2 The district judge
declined to try to identify and promote any
additional sergeants, stating that to do so
"would be conjectural and overly subjective," as
well as disruptive, and instead ordered the City
to pay the plaintiffs who were not promoted a
minimal award reflecting their lost opportunity
to be selected for a merit promotion. The
district court added that, except for certain
disputed issues, the City was doing all it could
"to promote racial and ethnic diversity among the
ranks of its lieutenants."
On appeal, plaintiffs contend that the City did
not meet its burden of proving that the
examination was content valid. If the examination
is determined to be job related, however, then
the plaintiffs argue that, based on its finding
that the combination of rank-order and merit
promotions represented an equally valid, less
discriminatory alternative promotional method,
the district court erred in failing to order
additional merit promotions.
I. Background
Initially recognizing the difficulties of
developing and administering an acceptable
process for the hiring and promotion of police
officers in a large metropolitan area, the Mayor
of Chicago appointed a "Blue Ribbon Committee" to
submit recommendations about how to proceed. The
Vice Chairman of that committee, James Holzhauer,
for instance, called by plaintiffs at trial,
testified that he was a partner in the firm of
Mayer, Brown and Platt and specialized in
handling employment law matters. He was also a
part-time faculty member teaching labor and
discrimination law at the University of Chicago
Law School. Further, Holzhauer had represented
the Fraternal Order of Police and other police
unions in the area of discrimination. Earlier in
his career he had been a city manager and for a
short period of time also had been the civilian
police commissioner for an upstate New York
police department. He explained how the Mayor’s
Committee had functioned and that the members
were an independent task force not paid by the
City. He was obviously qualified for this
committee assignment.
One of the recommendations of the Mayor’s
Committee was that outside consultants be
retained to develop and to administer promotion
examinations. Following that recommendation the
City retained Barrett & Associates, Inc., of
Akron, Ohio, described as a "Human Resource
Consulting Firm" specializing in employee matters
including promotion testing. The firm is headed
by Dr. Gerald B. Barrett who holds a Ph.D. in
psychology, as well as a law degree. He teaches
testing and measurement, personnel selection,
performance evaluation, and personnel psychology
as well as law at the University of Akron. Dr.
Barrett developed and administered the lieutenant
examination challenged in this suit. Dr. Barrett
and his firm had previously developed more than
fifty examinations for police and fire
departments including examinations for the cities
of Cleveland and Akron, Ohio. Some of Dr.
Barrett’s work has been unsuccessfully challenged
in court, including federal court. Along with Dr.
Barrett and his firm, the City retained the
Arthur Andersen company to aid in the grading of
the examination.
Dr. Barrett was no stranger to the Chicago
Police Department. In 1993, Dr. Barrett had
developed an examination for promotion to Chicago
Police Sergeant. In preparing that examination,
Dr. Barrett conducted a job analysis of the
sergeant position by interviewing approximately
ninety Chicago sergeants along with twenty-eight
lieutenants about their duties and
responsibilities. For the lieutenant examination
now in question, Dr. Barrett, following that same
course, interviewed additional lieutenants,
captains, and sergeants, including minorities.
Dr. Barrett also toured the police districts,
rode along with lieutenants on duty, observed the
work of lieutenants, and reviewed applicable
police documents, reports, and orders. Based on
the data he gathered from his preliminary work,
Dr. Barrett prepared a "Master Job Description"
for the Chicago Police Lieutenant position. The
Master Job Description identified what are
referred to as "major work behaviors," including
the associated tasks and responsibilities of
lieutenants. In creating the Master Job
Description, Dr. Barrett measured the importance
and frequency of a lieutenant’s tasks and
responsibilities. Dr. Barrett also consulted
certain source materials which contained
information with which a lieutenant was expected
to be familiar. These materials included Police
Department policies and directives, certain
sections of the Illinois Statutes and the Chicago
Municipal Code, the collective bargaining
agreement of the Union, and the Department’s
community policing strategy. A list of those
source materials was made available to the
candidates prior to the examination.
The examination developed by Dr. Barrett had
three components. The first was a written job-
knowledge test consisting of 150 multiple choice
questions derived from the source materials. It
was first pilot tested and then further refined
before being given. The next component of the
examination was referred to as the "In-Basket
Exercise." This exercise was based on a
hypothetical situation which a candidate might
face in an emergency where he or she would have
to assume the duties of a lieutenant who had
become ill or incapacitated. In this exercise,
the lieutenant candidates were each presented
with a packet of information simulating a
lieutenant’s in-basket. The candidates were
allowed two and one-half hours to study the
materials before being given ninety minutes to
answer sixty multiple choice questions. The
answers to these sixty questions were contained
in the materials provided to the candidates, and
the candidates were allowed to refer to these
materials during the examination. The in-basket
materials had first been reviewed by Chicago
Police Department subject matter experts, and the
exercise was also pilot tested prior to
implementation. The purpose of the in-basket
exercise was to measure necessary skills and
abilities of possible lieutenants, not to test
job-knowledge as was intended by the first
component. Those responsibilities, for instance,
required knowledge of reports, personnel actions,
and the assignment of tasks.
The third component of the examination was an
oral briefing exercise intended to demonstrate a
candidate’s analytical abilities and oral
communication skills. This exercise simulated a
Chicago Police Lieutenant’s responsibilities at
roll call. Each candidate was given materials
about Chicago gang activity and related
Department directives. The candidates were
allowed twenty-five minutes to review those
materials and then they were required to give an
oral briefing on the issue not to exceed ten
minutes. During their oral presentations,
candidates were allowed to refer to the materials
and their own study notes. The oral presentations
were recorded on audio tape for later review. A
monitor sat in the room during the oral
presentations, but was not permitted to
communicate with the candidate. The oral
presentation reviewers evaluated the recorded
presentations without knowing the identity of the
candidates. Three trained raters independently
scored each presentation on an objective check
list and then reached a conclusion about each of
the candidates. This component had also been
reviewed by Chicago Police Department subject
matter experts and pilot tested.
II. Consideration of the Issues
Plaintiffs raise a number of arguments on
appeal, but the core argument is that the
district court committed reversible error when it
accepted Dr. Barrett’s testimony that the
examination was content valid as sufficient
evidence to rebut the plaintiffs’ prima facie
showing of disparate impact. Plaintiffs argue
first that Dr. Barrett’s testimony is
inadmissible under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and,
secondly, that, even if admissible, Dr. Barrett’s
testimony is insufficient to justify the
examination on which minorities fared so poorly.
We address each of these arguments in turn.
A. Dr. Barrett’s Testimony
Citing Daubert, plaintiffs characterize Dr.
Barrett’s testimony that the examination was
content valid and that the final test scores
could be used for rank-order promotions as
nothing more than inadmissible conjecture,
arguing that the testimony lacks "scientific
validity." Daubert involved expert testimony in
a personal injury suit involving a prescription
drug taken by an expectant mother. The drug was
alleged to have caused birth defects in
plaintiff’s children. The district court granted
summary judgment in behalf of the drug company
finding petitioner’s scientific evidence and the
principle upon which it was based were not
"sufficiently established to have general
acceptance in the field to which it belongs."
Daubert, 509 U.S. at 583. Likewise, plaintiffs in
the present case claim that Dr. Barrett’s
opinions are unsubstantiated and lack "scientific
validity." His opinions, it is argued, were
nevertheless admitted by the district court
because of Dr. Barrett’s "expertise." Appellants
contend that the district court’s decision was
erroneous.
Under Daubert, the testimony of a scientific
expert is admissible only if it is both relevant
and reliable. Kumho Tire Co., Ltd. v. Carmichael,
119 S.Ct. 1167, 1171 (1999). In the present case,
appellants challenge only the reliability of the
admitted expert testimony. A district court
enjoys broad latitude both in deciding how to
determine reliability and in making the ultimate
reliability determination. Id. It is clear from
the record that the district court recognized the
applicability of Daubert to Dr. Barrett’s
testimony. Furthermore, while appellants broadly
assert that the district judge failed to consider
Daubert in making his admissibility
determination, their argument actually focuses on
what they perceive to be the district court’s
improper application of the Daubert framework.
Appellants contend that Dr. Barrett’s testimony
fails to meet the reliability prong of Daubert
because there was no showing that his opinions
were scientifically valid.
We review the district court’s reliability
determination for abuse of discretion, Kumho Tire
Co., Ltd., 119 S.Ct at 1171, and affirm. The
Daubert inquiry is "a flexible one" and is not
designed to serve as a "definitive checklist or
test," Daubert, 509 U.S. at 593-94, but rather to
ensure "that an expert, whether basing testimony
upon professional studies or personal experience,
employs in the courtroom the same level of
intellectual rigor that characterizes the
practice of an expert in the relevant field."
Kumho Tire Co., Ltd., 119 S.Ct. at 1176. In the
present case, it is clear that Dr. Barrett’s
testimony had "’a reliable basis in the knowledge
and experience of [the relevant] discipline.’"
Id. at 1175 (quoting Daubert, 509 U.S. at 592).
Dr. Barrett has extensive academic and practical
experience in designing employment evaluations.
Furthermore, it is not accurate to claim that the
district judge declined to conduct an inquiry
into the scientific validity of Dr. Barrett’s
opinion. As the district court noted, Dr. Barrett
based his opinions, at least in part, on the job
analysis that Barrett & Associates meticulously
formulated which detailed a relationship between
the skills measured in the examination and an
individual’s effectiveness as a lieutenant.
Furthermore, while plaintiffs contend that the
"general scientific literature" in the area
consists of a single unpublished study, it is
undisputed that Dr. Barrett himself has authored
approximately fifty articles dealing with
employee selection and promotion testing for
peer-reviewed journals. This is not a case in
which the expert failed to conduct any studies or
analysis to substantiate his opinion. See Deimer
v. Cincinnati Sub-Zero Products, Inc., 58 F.3d
341, 344 (7th Cir. 1995). Given these facts, it
is clear that the district judge’s decision to
admit Dr. Barrett’s testimony was not manifestly
erroneous. See id.
B. Test Validity
Plaintiffs argue in the alternative that Dr.
Barrett’s testimony, if properly admitted, was
insufficient to support a finding that the
examination was job related. They contend that
the 1994 test was not job related because it did
not approximate the work situation. Plaintiffs
cite Griggs v. Duke Power Co., 401 U.S. 424
(1971), in which the Court held that, under Title
VII, employment tests are forbidden which produce
a disparate impact "unless they are demonstrably
a reasonable measure of job performance." Id. at
436. Additionally, plaintiffs note that, in 1972,
Congress realized that equal employment had been
thwarted when employment was based on "criteria
unrelated to job performance and on
discriminatory supervisory ratings," citing
Connecticut v. Teal, 457 U.S. 440, 449 n.10
(1982). From these two cases it can be seen that,
if a facially neutral employment practice has a
significant discriminatory impact, the employer
bears the burden of demonstrating that any
requirement of employment imposed has a manifest
relationship to the particular employment. Griggs
makes clear, however, that even employment tests
with a disparate impact are acceptable if "they
are demonstrably a reasonable measure of job
performance." Griggs, 401 U.S. at 436. It would
be unrealistic to require more than a reasonable
measure of job performance. It therefore is a
matter of reasonableness, except in cases in
which the plaintiff can show that the employer
was using the practice as a mere pretext for
discrimination. There is no claim, however, of
employer pretext in the present case.
As previously noted, an evaluation method may
be shown to be job related under any one of three
tests: criterion related, content validity, or
construct validity. Gillespie v. State of
Wisconsin, 771 F.2d 1035, 1040 (7th Cir. 1985).
In the present case, the district court found
that the test was content valid. In evaluating
content validity, a court must consider
(1) the degree to which the nature of the
examination procedure approximates the job
conditions; (2) whether the test measures
abstract or concrete qualitites; and (3) the
combination of these factors, i.e. [sic] whether
the test attempts to measure an abstract trait
with a test that fails to closely approximate the
working situation.
Id. at 1043.
In the present case, the district court
recognized the correct standard for determining
content validity. After considering all of the
evidence, the court determined that the 1994
examination measured a significant portion of the
knowledge, skills, and abilities necessary for a
police lieutenant and, therefore, was content
valid. Because this is a factual finding, we will
affirm the decision of the district court unless
it is clearly erroneous. Gillespie, 771 F.2d at
1042.
The factual details we have already related
about the development of the lieutenant test are
enough to refute plaintiffs’ arguments. The
record shows not only the knowledge, expertise,
and experience of those involved in the test
development, but also the preliminary use of peer
review and pilot testing of each of its three
parts. Officers of various police ranks and
experience, including minorities, were consulted
during the development of the process. It would
be totally unjustified to fail to take note of
those preliminary efforts and, considering our
standard of review, to reverse the trial judge
who had carefully considered and weighed all the
evidence before coming to the conclusion of test
validity. The standard to be applied is not
simply whether minorities do well or not on a
test. That is only the beginning. It is obviously
not impossible to develop a useful and
nondiscriminatory test.
C. Validity of the Scoring System
Plaintiffs also raise an issue about the City’s
use of the examination scores to make promotions
in rank order, citing Gillespie, 771 F.2d 1035,
for the proposition that the use of rank-ordering
must be independently justified when the scoring
system results in a disparate impact. In
Gillespie, this court relied on the Second
Circuit’s decision in Guardians Ass’n of New York
City v. Civil Service Commission, 630 F.2d 79 (2d
Cir. 1980). The Guardians court recognized that
an employer who wants to use rank-order scores
for hiring decisions must demonstrate that rank-
ordering is sufficiently justified. Id. at 103.
That "task is by no means impossible," even
without resort to a criterion related study of
the issue. Id. Under Guardians, rank-order
promotions can be validated by a substantial
showing that (1) the test is job related and
representative and (2) the test maker achieved
"an adequate degree of reliability." Id. at 104.
As previously discussed, the 1994 lieutenant
examination was based on a detailed job analysis
and was constructed in adherence to the Uniform
Guidelines. See Guardians Ass’n of New York City,
630 F.2d at 104. The City has made a substantial
showing of job relatedness sufficient to satisfy
the first prong of the Guardians test. The
reliability prong is also met. Barrett &
Associates used a number of methods, including
pre-testing, to ensure the reliability of the
1994 examination. See id. Furthermore, we agree
with the Second Circuit’s holding that when an
examination measures ability with sufficient
differentiating power to justify rank-ordering,
it is permissible for the City to set a cut-off
score at the point where the rank-ordering
provides the number of promotions necessary to
fill the City’s available openings. See id. at
105. In the present case, the City’s use of rank-
ordering is valid, and the City was justified in
setting a cut-off score which resulted in the
necessary number of promotions.
The majority of plaintiff’s remaining
objections are de minimus and require no
analysis. We affirm the trial judge’s admission
of Dr. Barrett’s testimony and the court’s
conclusion about the validity of the tests, as
well as the court’s exercise of its discretion in
appointing some additional sergeants to
lieutenants and no more. See EEOC v. Laborers’
Int’l Union, 49 F.3d 304, 307 (7th Cir. 1995)
("We review the decision to grant an equitable
remedy under an abuse of discretion standard.").
There is one remaining issue.
D. Attorney’s Fees
On the merits, the district court held that the
City’s promotion test and scoring system were
valid under Title VII. However, the court further
held that plaintiffs had shown the existence of
an equally valid, less discriminatory alternative
to rank-order promotions, the merit promotion
method. The City likewise believed the use of
this method was an equally valid, less
discriminatory method, but argued that it was
unavailable because the state court had enjoined
its use. The district court found, however, that
federal law prevailed over the state court
action, relying on 42 U.S.C. sec. 2000e-7. The
City does not appeal this finding, so we need not
pass on the validity of the merit promotion
method, but we note that the parties agree as to
the value of the merit method despite the fact
that it includes a subjective element which
minorities often find objectionable.
Following the district court’s decision on the
merits, plaintiffs applied for attorney’s fees
and costs under 42 U.S.C. sec. 2000e-5(k). The
district court denied plaintiffs’ request in part
on the basis that the issues on which plaintiffs
did not prevail, the validity of the 1994 test
and its scoring system, were unrelated to the
issue regarding the availability of an
alternative promotion method on which plaintiffs
did prevail. The district court held that the two
claims were distinct and independent and could
have been pursued separately. The district court
concluded that more than 90% of the time expended
related exclusively to the issues of test
validity on which the plaintiffs did not prevail.
Nevertheless, the court compensated plaintiffs
for 20% of their time spent for the entire
litigation, describing that as "more than three
times the percentage of the total time and
expenses devoted to the issue on which plaintiffs
prevailed."
The court adopted the City’s suggested fee
award of $134,699.88 for the litigation of the
merits. The court then added $28,284.00 for the
time expended in the remedy phase and $2,629.50
for time expended reviewing materials in a
companion case. The court also awarded plaintiffs
$10,915.00, the total amount of fees sought in
connection with the presentation of the fee
petition. This added up to fees in the amount of
$176,528.38, considerably less than the requested
lodestar fee amount of $518,445.85. Plaintiffs
also sought $15,085.30 in statutory costs under
28 U.S.C. sec. 1920 and $37,257.00 in expert fees
and non-taxable costs./3 The court allowed no
specific costs related to the unsuccessful
challenge to the validity of the examination,
fixing total costs in the amount of $11,441.55.
Plaintiffs are not satisfied with the district
court’s substantial reduction in the amounts
requested and assert that the district court
committed legal error in holding that the
validity of the 1994 examination was a separate
claim from the existence of an equally valid,
less discriminatory alternative promotion method.
In response, the City argues that in a "mixed
result" case as this one is, the district court
may exercise broad discretion, and therefore, the
fees award as limited by the district court
should be affirmed.
This circuit has considered similar problems on
a number of occasions attempting to apply the
principles set forth by the Supreme Court in
Hensley v. Eckerhart, 461 U.S. 424 (1983). See,
e.g., Jaffee v. Redmond, 142 F.3d 409 (7th Cir.
1998); Kurowski v. Krajewski, 848 F.2d 767 (7th
Cir. 1988). Our case, Spanish Action Comm. v.
City of Chicago, 811 F.2d 1129 (7th Cir. 1987),
interprets Hensley in helpful language which we
set forth in some length as that language cannot
be substantially improved.
In Hensley v. Eckerhart, 461 U.S. 424, 103 S.
Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court
set out guidelines for calculating the proper
amount of an attorney’s fee award in cases where
the plaintiff only partially prevails on his
claims. The Court divided these partial recovery
cases into two categories. The first category
involves cases where the plaintiff presents
distinctly different claims for relief that are
based on different facts and legal theories. A
plaintiff may not recover attorney’s fees for
time expended on an unsuccessful claim if that
claim is "distinct in all respects from his
successful claims." Id. at 440, 103 S. Ct. at
1943. Unrelated claims must be treated "as if
they had been raised in separate lawsuits." Id.
at 435, 103 S. Ct. at 1940.
. . . .
The second category of partial recovery cases,
into which this action does fall, includes those
cases in which the plaintiff’s claims for relief
involve a common core of facts or are based on
related legal theories. Because the majority of
counsel’s time will be devoted to the litigation
as a whole, as opposed to any one specific claim,
this type of lawsuit cannot be viewed as a series
of discrete claims. As a result, time spent on
related claims that ultimately prove unsuccessful
should not be automatically excluded from the
attorney’s fee calculation. Instead, the focus in
arriving at the appropriate fee award should be
on "the significance of the overall relief
obtained by the plaintiff in relation to the
hours reasonably expended on the litigation."
Hensley, 461 U.S. at 435, 103 S. Ct. at 1940.
. . . .
Where the plaintiff fails to obtain all that he
reasonably could have asked for and achieves only
partial or limited success, the lodestar amount--
the product of the number of attorney’s hours
reasonably expended on the litigation as a whole
times a reasonable hourly rate--is likely to be
excessive. The Supreme Court therefore provided:
"A reduced fee award is appropriate if the
relief, however significant, is limited in
comparison to the scope of the litigation as a
whole." Hensley, 461 U.S. at 440, 103 S. Ct. at
1943. The Court, however, articulated no precise
rule or formula to be followed in making such a
reduction, instead choosing to leave this
determination to the discretion of the district
court in view of its greater familiarity with the
litigation. Id. at 436-37, 103 S. Ct. at 1941.
The Court did indicate that in reducing a fee
award to reflect the plaintiff’s limited success,
a district court may attempt to identify specific
hours that should be eliminated, or it may simply
reduce the award across the board to account for
the limited success. Id.
Spanish Action Comm., 811 F.2d at 1133.
In the present case, the district judge
recognized that the relief obtained was very
limited in relationship to the total relief
sought. As Hensley points out, in such cases, a
reduced fee amount is appropriate. Hensley, 461
U.S. at 440. As we have already noted, Hensley
does not require the application of a precise
rule or formula, leaving fee reduction to the
discretion of the trial court. Spanish Action
Comm., 811 F.2d at 1133. In reducing a fee award,
a district court may attempt to identify specific
hours to be eliminated or it may "simply reduce
the award across the board to account for the
limited success." Id. (citing Hensley, 461 U.S.
at 436-37).
The district court determined that more than
90% of time expended by plaintiffs related
exclusively to plaintiffs’ "main goal" of having
the 1994 examination declared invalid. That left
less than 10% of plaintiffs’ time which could be
applied to their successful claim. The court did
not automatically limit plaintiffs’ fee award to
10% however, but went on to allow plaintiffs’
fees for 20% of their time spent on the entire
litigation, noting that this amount represented
more than three times the percentage of the total
time and expense devoted to the issues on which
plaintiffs prevailed. The district court also
allowed fees for 20% of the time plaintiffs’
counsel spent reviewing materials in a companion
case. In addition, plaintiffs’ attorneys were
awarded 100% of their fees in the remedy phase of
the case and in prosecuting their fee petition.
These fee and cost allowances we view as not only
fair and reasonable, but practical. It,
therefore, makes no difference that the court
originally viewed each of the claims as separate
as the applicable fee criteria was fully
satisfied.
III. Conclusion
The district court is affirmed in all respects.
The parties shall bear their own costs.
/1 When the scores from the 1994 examination
resulted in promotions in a racial pattern
significantly different from the racial make-up
of the applicant pool, the City attempted to
rectify the situation by combining merit
promotions with the rank-order promotions. Under
this approach, twenty percent of the promotions
would be based on a merit selection system rather
than the examination results. The Superintendent
of Police ordered highly-placed police officials
to review the sergeants under their command and
to nominate sergeants who met performance-related
criteria such as education, seniority, prior
assignments, discipline, and productivity. Those
nominations were screened by an Academic
Selection Board comprised of deputy
superintendents and command personnel. As a
result, the Superintendent approved merit
promotions of thirteen additional sergeants to
the rank of lieutenant. This action prompted a
non-minority sergeant who failed to be slated for
promotion to seek a state court injunction
prohibiting the making of those promotions based
on provisions of the Chicago Municipal Code
which, he argued, barred the department from
using merit selection. The injunction was issued
and affirmed by the state appellate court, and
the City did not grant the merit promotions.
/2 The first opinion of the district court is
reported in Brown v. City of Chicago, 8 F. Supp.
2d 1095 (N.D. Ill. 1998), and the second with the
same case name at 19 F. Supp. 2d 890 (N.D. Ill.
1998). In an effort to avoid as much duplication
of detail as possible those opinions can be read
as a supplement to this opinion.
/3 Expert fees are expressly authorized by 41 U.S.C.
sec. 1000e-5(k). Non-taxable costs are
recoverable as part of the attorney’s fees to be
awarded. Missouri v. Jenkins, 491 U.S. 274, 285-
89 (1989).