declaring that the continuing violation theory applies when actionable conduct occurs both outside and inside the limitations period, but the plaintiff, as a reasonable employee, did not know or should not have known that the time-barred acts were discriminatory until within 300 days of filing an EEOC claim
How later courts described this case
- declaring that the continuing violation theory applies when actionable conduct occurs both outside and inside the limitations period, but the plaintiff, as a reasonable employee, did not know or should not have known that the time-barred acts were discriminatory until within 300 days of filing an EEOC claim
- holding that a continuing systemic violation requires that a plaintiff must demonstrate some discriminatory act within the requisite time frame
- recognizing an exception to the limitations period “[w]here the unlawful employment practice manifests itself over time, rather than as a series of discrete acts.”
- continuing violation existed where “employer’s ambiguous acts serve to obscure the existence of an unlawful policy and fail to alert ‘the average lay person to act to protect his rights’”
Written by the judges who cited it.
The opinion
JOHNSON, Circuit Judge,
concurring in part and dissenting in part.
I differ only with the majority’s resolution of the issue of attorneys’ fees. As I read its opinion, the majority has three chief complaints about how the district court treated the application for attorneys’ fees.
First, it complains that the district court appears not to have scrutinized the application for evidence of duplication of effort and for work, not legal in nature, but rather clerical. These are considerations noted under the first of the factors or guidelines set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir.1974) (emphasis in original): “The time and labor required.” It is true that our cases direct that, “[i]n computing reasonable attorneys’ fees, the district judge must ‘explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.’ ” Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 581 (5th Cir.1980) (quoting In re First Colonial Corp. of America, 544 F.2d 1291, 1300 (5th Cir.), cert. denied, 431 U.S. 904 (1977)). Further, we have said that a district judge, having decided that some Johnson factors were “not of great significance,” “should have expressly stated this in his conclusions of law.” Id. at 584 (emphasis supplied). The Copper Liquor opinion’s advisory language notwithstanding, other cases show that if there is “some assurance that the court has arrived at a just compensation based upon appropriate standards ..., it will not always be necessary for a district court to address each of the twelve [Johnson ] factors in explaining the considerations affecting its decision.” Davis v. Fletcher, 598 F.2d 469, 471 (5th
reached, *538 Cir.1979). The district court here in fact invoked and applied the first, as well as a good many other, of the Johnson factors. Under these circumstances, there is “assurance” that the district court applied “appropriate standards” despite its failure to mention expressly two of the subsidiary considerations under Johnson’s first factor. 1
Second, the majority faults the district court for multiplying the hours claimed by the billing rate and then turning to the Johnson factors. The majority insists that the district court must apply the Johnson factors to determine reasonableness before multiplying. Yet, it seems clear that the district court did in fact proceed as the majority bids. Before multiplying, the district court stated that it would use “the number of hours reasonably expended.” The court also said that evidence concerning “the customary fees and current billing rates” had been “taken into account in determining the lodestar amount.” Elsewhere, when considering an upward adjustment, the court expressly disclaimed any reliance upon Johnson factors, or certain of them, saying it had already “taken them into account in setting the lodestar amount.” The majority seems most distressed by what it perceives as the district court's consideration of the reasonableness of the number of hours after it had performed multiplication. Yet, even after multiplication, once it had “turn[ed] to the specific Johnson factors,” the district court declined to reduce the number of hours, explaining that it had already “determined a reasonable number of hours.”
Even if the district court’s mode of proceeding must be understood as the majority asserts, and assuming the sequence of calculations and considerations demanded by the majority is generally a good idea, reversal is not required in the instant case. The district court has made it clear that it determined what number of hours was reasonable. This finding remains unimpaired even if made after undertaking the purely mechanical multiplication calculation.
Finally, the majority concludes that the district court’s twenty-five percent upward adjustment was an abuse of discretion. The district judge’s opinion shows that he was keenly aware of the Supreme Court’s decision in Blum v. Stenson, 465 U.S. 886 , 104 S.Ct. 1541 , 79 L.Ed.2d 891 (1984). He nevertheless held that an upward adjustment was mandated. I would not upset this determination.
. There is, moreover, some indication that the district court applied one of those considerations, indeed possibly too strictly, for it denied any recovery for the work performed by paralegals. See Jones v. Armstrong Cork Co., 630 F.2d 324 , 325 n. 1 (5th Cir.1980) ("Had Ms. Smith been a paralegal, then to the extent that she performed work that has traditionally been done by an attorney, Ms. Turner would have been entitled to have compensation for that work separately assessed and included in her award.”); see also Richardson v. Byrd, 709 F.2d 1016, 1023 (5th Cir.), cert. denied, 464 U.S. 1009 , 104 S.Ct. 527 , 78 L.Ed.2d 710 (1983).