In Title VII cases, “[i]t is beyond the province of a trial or a reviewing court to determine— after the fact — that certain facts in the record might have served as the basis for an employer’s [discriminatory act]”
How later courts described this case
- In Title VII cases, “[i]t is beyond the province of a trial or a reviewing court to determine— after the fact — that certain facts in the record might have served as the basis for an employer’s [discriminatory act]”
Written by the judges who cited it.
The opinion
JERRE S. WILLIAMS, Circuit Judge, with whom THORNBERRY, Circuit Judge, joins,
concurring specially:
We concur in the result. We feel that we are bound by the decision of this Court in Commonwealth Oil Refining Co., Inc. v. EEOC, 720 F.2d 1383 (5th Cir.1983), in which this Court denied rehearing en banc, 734 F.2d 1479 (5th Cir.1984). The emphasis in that case upon the “central issue” and obtaining the “primary relief sought” is binding upon us. We emphasize that we feel this requirement is not made necessary by the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424 , 103 S.Ct. 1933 , 76 L.Ed.2d 40 (1983), and indeed may well be contrary to the import of that ease. We feel that in Commonwealth the Fifth Circuit adopted an unduly restrictive rule with respect to recovery of attorney’s fees in a Title VII case, as Judge Tate effectively pointed out in his dissenting opinion. Id. at 1386. The Hensley decision specifically recognized without disapproval the more “generous formulation” of the right to receive attorney’s fees in such cases as Nadeau v. Helgemoe, 581 F.2d 275, 278 (1st Cir.1978); Busche v. Burkee, 649 F.2d 509, 521 (7th Cir.1981), cert. denied, 454 U.S. 897 , 102 S.Ct. 396 , 70 L.Ed.2d 212 ; Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir.1979).
What should control the awarding of attorney’s fees in this case is the recognition that Ana Uviedo brought suit under Title VII claiming several instances of discrimination based upon national origin. She failed to establish some of those instances, but she was successful in establishing others. It follows inescapably we have a case in which Title VII national origin discrimination has been established. And yet because of the unduly restrictive rule of this Circuit we are denying any attorney’s fees to this victim of discrimination who successfully proved that the defendant had engaged in Title VII discrimination against her. While this seems to be the law of this Circuit, it should not be the law of this Circuit. In effect we are abandoning our general rule of liberality in pleading. Fed. R.Civ.P. 8(f); 2A Moore’s Federal Practice HIT 8.13, 8.34. We are saying that the plain *1434 tiff must lose because she undertook to prove too much. If she had based her suit solely upon the instances of discrimination she successfully proved, she would recover attorney’s fees without question.
The law is well established in civil rights cases that attorney’s fees are properly awarded to a plaintiff even though the actual monetary damages growing out of the violation of civil rights are small or even nominal. The principle was well stated in Perez v. University of Puerto Rico, 600 F.2d 1, 2 (1st Cir.1979):
The award of counsel fees is not intended to punish the defendant in any way. Rather it is to permit and encourage plaintiffs to enforce their civil rights. To declare those rights while simultaneously denying the award of fees would seriously undermine the declared congressional policy. Fees may not be denied simply because only nominal damages are awarded.
And in Gore v. Turner, 563 F.2d 159, 164 (5th Cir.1978), this Court said: “Congress did not intend that the vindication of statutorily granted rights would depend on the private party’s economic resources or on the availability of free legal assistance.” Ana Uviedo did vindicate her rights against national origin discrimination in this case. She should be entitled to attorney’s fees. In further support of the principle that attorney’s fees can properly be awarded even though recovery by the plaintiff claiming the violation of civil rights is small in monetary terms, see Carey v. Piphus, 435 U.S. 247 , 257 n. 11, 267, 98 S.Ct. 1042 , 1049 n. 11, 1054, 55 L.Ed.2d 252 (1978); Basiardanes v. City of Galveston, 682 F.2d 1203, 1220 (5th Cir.1982); Milwe v. Cavuoto, 653 F.2d 80, 84 (2d Cir.1981).
This plaintiff should not suffer for failing to establish some claimed national origin discriminations when she successfully established other national origin discriminations under Title VII and was awarded damages. We cannot reconcile this holding with what should be the proper interpretation and application of Title VII in the awarding of attorney’s fees. Uviedo fails to obtain an award of attorney’s fees although she proved that the company discriminated against her based upon national origin in violation of law.
In spite of the denial of rehearing en banc in Commonwealth, we feel most strongly that the rule stated in the Commonwealth case is an incorrect application of Hensley v. Eckerhart and flies in the face of the congressional policy to award attorney’s fees to those who prove discrimination and therefore prevail in Title VII cases. It is our view that this Court should reconsider en banc its unduly restrictive rule and bring its holdings in line with the Hensley case, congressional intent, and the other courts of appeals in the United States.