Petition for Writ of Certiorari — Walker v. Anderson Electrical Connectors

A

91-1794

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Supreme Court, US. fF

FILED |

MAY 8 1992

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No.

IN THE

Supreme Court Of Che United States

OCTOBER TERM, 1992

ANN WALKER,

Petitioner,

v.

ANDERSON ELECTRICAL CONNECTORS,

a Subsidiary of Square D Company

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

RoserT L. WIGGINS, JR.

(Counsel of Record)

1400 SouthTrust Tower

Birmingham, Alabama 35203

(205) 328-0640

Naomi HILTON ARCHER

1400 SouthTrust Tower

Birmingham, Alabama 35203

(205) 328-0640

Counsel for Petitioner

QUESTION PRESENTED

This case presents issues which are identical to those for

which certiorari was granted in Estate of Farrar v. Cain and

Hobby, 941 F.2d 1311 (5th Cir. 1991), cert. granted, 112 S.Ct.

1159 (1992). This Court's decision in Farvar will be dispositive

of the present case.

The Eleventh Circuit is one of two circuits which errone-

ously focuses on the formaiity of the relief obtained rather than

the effect which the lawsuit has upon the legal relationship of

the parties in deciding whether the plaintiff is a “prevailing

party” entitled to an award of attorney’s fees. Like the Fifth

Circuit in Farrar, this approach of the Eleventh Circuit con-

flicts with that of the Ninth and Second Circuits which control

fee entitlement by the effect of the lawsuit rather than the

formality of the relief obtained. Compare Romberg v. Nichols,

953 F.2d 1152, 1159 (9th Cir. 1992) and Ruggiero v. Krzeminski,

928 F.2d 558 (2nd Cir. 1991) to Farrar, supra, and the present

case at App. I.

Accordingly, like Farrar, this case presents the question of

whether fee entitlement should be controlled by the material

alteration of the parties’ legal relationship or by the mere

existence of formal relief, such as nominal damages.

il

LIST OF PARTIES

The parties to this case in the Court of Appeals were as

follows:

Ann Walker

Anderson Electrical Connectors, a

subsidiary of Square D Company

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............----- i

Poo g: 4 oy > (Reese tn ii

TABLE OF CONTENTS... .....- 2c cc cccccccecccccccces iii

TABLE OF AUTHORITES ....... 2.22 ccc cee ccc cccccees iv

OPEMIOIING BELOW... wn wcrc cc ccc cece nese enccennens 1

JURISDICTION .... 1.22... eee cece ee eee eee eee eee: ]

STAT re MU MOLVED on ccc ccc esc ccc e nc eenencens ]

STATEMENT OF THE CASE ...........---- eee ee eeees ]

REASONS FOR GRANTING THE WRIT

I. The Petition Presents Issues Identical To

Those Pending Before the Court in Farvar.......... 3

Il. The Circuits Are Split In The Interpretations

Of This Court’s Decisions In Hewitt, Rhodes,

and Texas Teacher’s Association. .. 6.6.2... 000 eee ees 3

CERTIFICATE OF SERVICE. ........... 2 eee cece eeeees 11

PUM un ccc ces sae dennccnccccesesusesses A-1

iv

TABLE OF AUTHORITIES |

Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 405,

05 S.Ca. 20GR, 45 L.Ed SS S0 (1975) ...... 2. ieee 6

Berndt v. Kaiser v. Aluminum,

Fe ee FU eho c hee evn ceseinscswnuase 5

City of Riverside v. Rivera, 477 U.S. 561,

106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) ................. 6

Crowder v. Housing Authority of Atlanta,

ee ee ee CON Ty BD 6.0 ko ctr oc nccevesesenctas 6

Estate of Farrar v. Cain and Hobby, |

941 F.2d 1311 (5th Cir. 1991), |

cont. granted, 112 S.Ct. 1159 (1992) ...............50.. i, 3

Helvering v. Weise, 292 U.S. 614 (1934) ..............005.. 3

Heuntt v. Helms, 482 U.S. 755,

Spe ets I on ea kan kas ces 54h ake ok passim

Huddleston v. Roger Dean Chevrolet, Inc.,

845 F.2d 900 (11th Cir. 1988) ..............-. 2. eee ee 5

Lindsey v. American Cast Iron Pipe Co.,

ee ae Be Ce Gs IED vce cia ss nccecsviasevccese 5

Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, |

pm kL Se ee ee 4, 10 |

Mentor Savings Bank v. Vinson, 477 U.S. 57,

106 S.Ce. 2999, 91 L.Ed. 49 (1986) .................... 6

Newman v. Piggie Park Enterpmses, Inc.,

SOO UD. Geey Oe ek, BOG CIM occ ic ewe cc ee eess 6

Rhodes v. Stewart, 488 1' S. 1,

ee ls a ec ks a wan dep 80 aon passim z

Romberg v. Nichols, 953 F.2d 1152

PE CCh oka bees ks Loe sh obhe es Wabe seen i, 3,7

Vv =

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Ruggiero v. Krzeminski, 928 F.2d 558

+ 6 | | EST e eee ee TEE i, 3

Texas State Teachers v. Garland Ind. Sch. Dist.,

489 U.S. 782, 109 S.Ct. 1486 (1989) ............... passim

Texas State Teachers v. Garland Ind. Sch. Dist.,

righ 4. 2) fe, eer

Walker v. Anderson Electrical,

DEG FBS OSs CLIC, TOG) oc sk ces avaecescticnn ds i

Statutes:

Title VII of the Civil Rights Act of 1964 .............. 1,6, 7

- ge eo ot) er. rr rere ree ea Seer re ii ]

gtk oe o | MPeePeeererrera Pree Tee es ss 4

gh toe) Tt Pee EECCEPEETerrerr ere ee as ]

S. Rep. #94-1011, p. 5 (1976),

U.S. Code Cong. & Admin. News 1976,

sale MUN URONE gc cic sca teow seen ncn eener spe aeeeant 4

OPINIONS BELOW -

The Opinion of the Court of Appeals is reported as Walker

v. Anderson Electric, 112 F.2d 1159 (1991), and is reproduced in

the Appendix at page A-1. The Court of Appeals denied the

petitioner’s Petition for Rehearing on January 6th, 1992. The

denial of the Petition for Rehearing is reproduced in the Ap-

pendix at page A-1.

JURISDICTION

The judgment of the Court of Appeals was entered on Octo-

ber 18, 1991. The petitioner filed a timely Petition for Rehear-

ing. On January 9, 1992, the Court of Appeals denied the

Petition for Rehearing. The jurisdiction of this Court is in-

voked under 28 USC Sectiqn 1254(1).

STATUTES INVOLVED

Section 706(k) of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-5(k), is relevant to this case and provides as

follows:

In any action or proceeding under this title the

court, in its discretion, may allow the prevailing

party, other than the Commission or the United

States, a reasonable attorney’s fee as part of the costs,

and the Commission and the United States shall be

liable for costs the same as a private person.

STATEMENT OF THE CASE

A jury verdict was entered in the district court finding the

defendant guilty of sexual harassment in violation of Title VII

of the Civil Rights Act of 1964.' The trial court found that the

jury verdict obviated the need for injunctive relief because the

The Eleventh Circuit correctly noted that “ [t]he jury found that Ander-

son Electrical had committed acts of sexual harassment against Walker in

violauon of Tide VII and had invaded Walker's privacy”, but “the jury also

2

verdict alone “provided adequate warning to Anderson Electri-

cal and sufficient guarantee against future sexual harassment”.

Nevertheless, the plaintiff was held not to be a prevailing party

because she did not obtain any formal injunction, declaratory

relief or nominal damages. These formal remedies were de-

nied because they were mistakenly not preserved in the pre-

trial order and because the jury verdict was found to have

served the same purpose and made them unnecessary. She was

denied back-pay on a jury finding that the sexual harassment

did not “cause plaintiff to lose any time from work”.

Thus, the plaintiff obtained some of what she sought by

bringing this suit, but not everything. The denial of back-pay

was not appealed, but the other issues were. This Petition only

addresses the denial of attorney’s fees.

The Eleventh Circuit affirmed the denial of attorney’s fees,

holding that “to be a prevailing party ... requires the attain-

ment of something more tangible than a jury finding of sexual

harassment”. App. 12. The absence of a formal injunction and

nominal damage award was held fatal to her status as a prevail-

ing party despite the trial court’s finding that the jury verdict

informally served the same purpose by “providing adequate

warning to Anderson Electrical and a sufficient guarantee

against future sexual harassment”. The circuit court reasoned

that a jury verdict of sexual harassment which provides such

“warning” and “guarantee” does not “materially alter” the rela-

tionship between the woman who was sexually harassed and

the Company which harassed her. Why such a change in their

relauionship would not occur in that situation was not fully

explained by the Circuit court, although the lack of a formal!

court imposed remedy was stressed. App. 12.

found that Walker had sustained no monetary damages ... as a proximatc

consequence of these violauions”. Walker v. Anderson Electrical, 944 F.2d 841

(11th Cir. 1991). The jury verdict on special interrogatories is set forth in

footnote 4 of that Opinion. App. 1. While the plaintiff could not obtain true

compensatory or punitive damages under Tite VII as it existed at the time

of trial, she sought back-pay which was allowable.

3

REASONS FOR GRANTING THE WRIT

I

The Petition Presents Issues Identical To

Those Pending Before the Court In Farrar.

The outcome of the present case will be controlled by this

Court's decision in Estate of Farrar v. Cain and Hobby 941 F.2d

1311 (5th Cir. 1991), cert granted, 112 S.Ct. 1159 (1992), be-

cause it presents an issue which is identical to the issue before

the Court in Farrar, viz: whether fee entitlement should de-

pend on the formality of the relief awarded in a civil rights

action rather than the effect which the lawsuit has had

on the relationship between the parties.

Due to the similar nature of the issues pending before this

Court in Farrarand the present case, petitioner argues that the

appropriate course of action would be for this Court to grant

the petition for certiorari and summarily rule on the issue and

merits presented therein after it has decided Farrar. This

course of action is in line with the manner in which this Court

has previously handled situations in which petitions for certio-

rari have addressed identical issues. See e.g. Helvenng v. Weise,

292 U.S. 614 (1934).

II

The Circuits Are Split In The Interpretations

Of This Court’s Decisions In Hewitt, Rhodes,

and Texas Teacher’s Association.

Currently, there is a split in the Circuits in determining the

test for fee entitlement. In the Eleventh and Fifth Circuits, the

formality of relief controls fee entitlement rather than the

material alteration of the parties’ legal relationship, but in the

Second and Ninth Circuits, the opposite is true. Compare

Romberg v. Nichols, 953 F.2d 1152, 1159 (9th Cir. 1992) and

Ruggiero v. Krzeminski, 928 F.2d 558 (2nd Cir. 1991) with Estate

of Farrar v. Cain and Hobby, 941 F.2d 1311 (5th Cir. 1991), cert

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4

granted, 112 S.Ct. 1159 (1992), and the present decision below

at App. 8-12. The approach of the Second and Ninth: Circuits

comports with this Court’s decisions in Hewitt v. Helms, 482

U.S. 755 (1987), Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202

(1988), and Texas State Teachers v. Garland Ind. Sch. Dist., 489

U.S. 782, 109 S.Ct. 1486 (1989). The holding of the Eleventh

Circuit below and the Fifth Circuit in Farrar, supra, are unac-

ceptable under these cases because denial of a fee was pre-

mised on the lack of formal relief rather than on analysis of

the materiality of the alteration of the parties’ legal relation-

ships, as required by this Court in Texas State Teachers, Heuntt,

and Rhodes.

The court below held that being a prevailing party for pur-

poses of attorneys’ fees “requires something more tangible than a

jury finding of sexual harassment”. App. 12. The only thing

“more tangible” that the plaintiff could have received was a

formal injunction (or some other formal remedy) because the

trial court found that the jury verdict informally achieved the

same thing as an injunction by “providing adequate warning

to Anderson Electrical and a sufficient guarantee against fu-

ture sexual harassment”. The circuit court did not disagree

_ with this finding, but still required the plaintiff to achieve

“something more tangible” than that. This requirement is in

direct conflict with previous holdings of this Court.

In Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575,

65 L.Ed.2d 653 (1980), this Court held that “[n]othing in the

language of § 1988 conditions the District Court’s power to

award fees ... on a judicial determination that the plainulf’s

rights have been violated”. Jd. The Maher Court noted that the

Congressional history “expressly stated that ‘for purposes of

the award of counsel fees, parties may be considered to have

prevailed when they vindicate rights ... without formally ob-

taining relief”. Jd. 448 U.S. at 129 [quoting S. Rep. #941011,

p. 5 (1976), U. S. Code Cong. & Admin. News 1976, pp. 5508,

5512). Similarly, in Hewitt v. Helms, 107 S.Ct. 2672, 2676

(1987), this Court has held that “[i]t is settled law, of course,

5

that relief need not be judicially decreed in order to justify a

fee award”.

It is well established that “[t]he touchstone of the prevailing

party inquiry must be the material alteration of the legal rela-

tionship of the parties in a manner which Congress sought to

promote in the fee statute”. Texas Teachers Assn. v. Garland Ind.

Sch. Dist., 489 U.S. 782, 791-793 (1989). The trial court below

found that the jury verdict was the equivalent of formal injunc-

tive relief because it “provided adequate warning to Anderson

Electrical and a sufficient guarantee against future sexual ha-

rassment”. The Eleventh Circuit did not disagree with this

finding of fact or reverse it as clearly erroneous, but neverthe-

less held that the jury verdict amounted to “nothing more”

than “‘the moral satisfaction of knowing that a federal court

concluded that his rights had been violated’ ”. App. 12.

That ruling creates error of exceptional public importance

because a jury verdict of sexual harassment is not merely “the

moral satisfaction” of knowing your rights have been violated.

It is much more. As the trial court found, it is “adequate warn-

ing to Anderson Electrical and a sufficient guarantee against

future sexuai harassment”. It is also a formal rejection of the

Company’s mistaken belief that sexual harassment is not oc-

curring or that it is not sufficiently “severe or pervasive” to

alter the conditions of women’s employment or to create an

abusive working environment”. The jury verdict further told

the defendant Company that it “should have known of the

sexual harassment” and “failed to take sufficient remedial ac-

tion” to prevent it.”

a

® The jury was instructed that the Eleventh Circuit requires these things be

proven by the plaintiff in order to return a verdict of harassment and the

jury verdict is presumed to be in accordance with such instructions. Lindsey

v. American Cast Iron Pipe Co., 810 F.2d 1094, 1097 n. 1 (11th Cir. 1987);

Berndt v. Kaiser v. Aluminum, 789 F.2d 253, 261 (3rd Cir. 1986). The law of

this Circuit requires those same findings to support a jury verdict of sexual

harassment. Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 905 (11th

Cir. 1988).

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2

To hold that these things do not alter the relationship be-

tween the woman who is sexually harassed and her employer

creates error of exceptional importance for three reasons.

First,-it would be incredible to assume that a verdict of perva-

sive sexual harassment does not alter the defendant's conduct.

For such a material change not to occur from a jury verdict of

sexual harassment would require a callous disregard toward

such things.

Second, sexual and racial harassment cases have often in-

volved nothing more than what was achieved by the current

jury verdict. Until the recent changes in the law, damages were

not available under Title VII. Nor is back-pay usually involved

when the plaintiff does not lose time from work (as in this

case).* Injunctive relief accomplishes nothing more than what

the trial court found the jury verdict itself accomplished here.

Thus, if the alteration of the parties’ relationship was not

enough in the present case, it will likely not be enough in any

case of sexual or racial harassment and fees will often be un-

available in such actions as a result.

Third, the Circuit Court opinion hinges fee entitlement on

the precarious distinction between verdicts which have a one

dollar nominal damage and those that do not. The law of the

*Admittedly the plaintiff did not achieve all the relief she sought in the

lawsuit, but that is not required. All that is required by this Court and this

Circuit is that she “achieve some of the benefit sought in bringing suit”.

Texas State Teachers Assn. v. Garland Ind. Sch. Dist., 489 U.S. 782 (1989);

Crowder v. Housing Authority of Atlanta, 908 F.2d 843, 848-50 (i 1th Cir. 1990).

The mere fact that she gained no back-pay because she “suffered no lost

time from work” does not affect her status as the prevailing party. This Court

has also held that damages are not essential to a Title VII attorney fee award

in instances where sexual harassment was at issue. Menior Savings Bank v.

Vinson, 477 U.S. 57, 106 S.Ct. 2399, 2404-05, 91 L.Ed. 49 (1986) (“First, the

language of Tide VII is not limited to ‘economic’ or ‘tangible’ discrimina-

tion”.). This Court has directly held that a monetary judgment is not neces-

sary in order to be the prevailing party. Albemarle Paper Co. v. Moody, 422 U.S.

405, 415, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975); Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 965 (1968); City of Riverside v.

Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 2694, 91 L.Ed.2d 466 (1986).

7

majority of circuits holds that such a one dollar award will

make the plaintiff a prevailing party. Romberg v. Nichols, 953

F.2d 1152 (9th Cir. 1992) (allowing attorney's fees where only

nominal damages were awarded, and discussing the award of

attorney's fees in other circuits where only nominal damages

were awarded).

It is an untenable position for the law to allow a one dollar

nominal award for sexual harassment to create a right to

attorney's fees, but an identical verdict without the one dollar

attached does not. Attorney’s fees should not hinge on such a

flimsy distinction. Such a view focuses too much on the for-

mality of the relief, rather than the effect on the parties. It

thereby violates the clear holdings of this Court which com-

mand that the formality of the relief is unimportant. Where a

plaintiff obtains a jury verdict of sexual harassment sufficient

to violate Title VII and sufficient to “guarantee against further

sexual harassment”, she is just as deserving to be paid her

attorney's fees as a plaintiff who obtains a one dollar nominal

damage award. It is the substance and effect of the verdict, not

its outward form, which is crucial to the determination of

whether she is prevailing.* Texas Teachers Association v. Garland

Ind. Sch. District, 489 U.S. 782, 791-93 (1989). It is obviously

not the one dollar nominal award itself which alters a legal

relationship in a manner Congress sought to promote, but the

end of the harassment and the end of the defendant’s denial

of its existence which accomplishes that alteration.

*It is not the one dollar award which makes the plaintiff prevail, but what

it represents. It represents the material alteration of the legal relationship

between the parties that is caused by the jury verdict, but the one dollar is not

the alteration itself. The alieration occurs with or without the nominal

award. It is the jury verdict that causes such alteration of the parties’ rela-

tionship by ending the defendant's denial that the harassment occurred and

ending its claim that it is not responsible because it took adequate steps to

prevent it. Only with that verdict can the “guarantee against future harass

ment” be sufficient to obviate injunctive relief. The nominal damage without

the verdict does not obviate injunctive relief or cause such an alteration of

the party’s legal relationships.

8

In Texas State Teachers, supra, this Court held that the plain-

tiff was the prevailing party even though he only obtained a

court ruling on a “minor” claim and there was no monetary or

injunctive relief which flowed from that ruling. That decision

recites only a district court “finding” of a violation and implic-

itly notes that there was no relief awarded for this violation.

The underlying Court of Appeals’ decision was even clearer

when it explicitly stated that “no relief was given with respect

to this holding”. Texas State Teachers v. Garland Ind. Sch. Dist.,

777 F.2d 1046, 1050 n. 5 (5th Cir. 1985). Thus, this Court has

squarely held that a finding of a violation is sufficient to be-

come a prevailing party without any formal relief flowing from

that finding so long as it results in a “material alteration of the

legal relationship of the parties in a manner which Congress

sought to promote in the fee statute”. Jd. 109 S.Ct. at 1493. It

is that effect, and not the existence vel non of formal court

remedies, which is the “touchstone” for fee entitlement. /d.

The very cases relied upon by the circuit court hold that it is

not the formality of a judgment which makes the plaintiff a

prevailing party, but “some action or cessation of action by the

defendant that the judgment produces”. Hewitt v. Helms, 482

U.S. 755, 761-762 (1987); Rhodes v. Stewart, 488 U.S. 1, 109

S.Ct. 202, 203 (1988). Even where a formal judgment is

achieved, that will not be enough to become a prevailing party

if it fails to alter the relationship between the parties because

“the real value of the judicial pronouncement .. . is in settling

some dispute which affects the behavior of the defendant toward the

plaintiff.” Heuztt, supra, 482 U.S. at 761 (emphasis in original);

Rhodes, supra, 488 U.S. 1, 109 S.Ct. at 203. The jury verdict

below clearly satisfies this test. The award of one dollar in

nominal damages would add nothing more to the change in

relationship. A distinction between verdicts with a one dollar

award and those without it is simply not an adequate basis for

deciding who is a prevailing party.

The circuit court recited these principles of law, but in ap-

plying them it reached the wrong conclusion when it equated

the jury verdict here to mere “moral satisfaction” of the type

9

involved in Hewitt v. Helms, supra. That court mistakenly

thought that the plaintiff in Hewitt had achieved a “finding of

a due process violation” and was arguing this finding to be

sufficient to trigger attorney’s fees. This Court, however, made

it clear that Heuntt had lost “on all of his claims” on summary

judgment, that his case was never tried on any issue, that he

never received a verdict or judgment on any issue, and that he

did not obtain relief informally “without benefit of a judg-

ment”. Jd. 482 U.S. at 757-760. Instead of a “finding of a due

process violation”, this Court stated that “[t]he most that

[Hewitt] obtained was an interlocutory ruling that his com-

plaint should not have been dismissed for failure to state a

constitutional claim”. Hewitt v. Helms, 482 U.S. 755, 760

(1987). It was in this limited and much different context that

this.Court spoke of mere “moral satisfaction”. /d. at 760 and

762. This Court did not make those statements about a jury

verdict which was found to be tantamount to an injunction. It

was only this misreading of Hewitt which allowed the circuit

court to equate the jury verdict here to the “interlocutory rul-

ing that [Hewitt’s] complaint should not have been dismissed

for failure to state a claim”.

The same defect occurs in the Eleventh Circuit’s reliance on

Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202 (1988). The circuit

court held that the plaintiff had a lesser status than in Rhodes

because she “did not attain even a declaratory judgment as did

the plaintiff in Rhodes”. That is exactly the opposite of what

Rhodes holds. That decision holds that it is unimportant whether

a formal declaratory judgment is entered because a plaintiff

prevails where he “affects the behavior of the defendant to

wards the plaintiff” regardless of whether he does so formally

or informally.’ The appellate court reached the opposite re-

*The circuit court ignored the most important part of the holding in

Heuntt and Rhodes. Those two decisions held that “[i]t is settled law ... that

relief need not be judicially decreed in order to justify a fee award under

§ 1988". Hewitt v. Helms, 482 U.S. 755, 760 (1987); Rhodes v. Stewart, 488 US.

1, 109 S.Ct. 202, 203 (1988). They adopted the catalyst test, rather than

rejecting it, when they held that “[a] lawsuit sometimes produces voluntary

10

sult by making the achievement of a formal remedy a “first

step on the road to obtaining relief and affecting the behavior

of the defendant towards the plaintiff”. App. 11. The decision

in Rhodes and Hewitt do not make formal relief a necessary

“first step on the road to obtaining relief”, but hold that such

formal relief is neither necessary (Hewitt) nor important

(Rhodes). The court of appeals did the opposite by making

formal relief not only important, but essential, thereby violat-

ing the Supreme Court’s holdings in Rhodes, Hewitt and Texas '

State Teachers.

Respectfully submitted,

Ado Gy),

RosBerT L. WIGGINS, JR.

Attorney for Plaintiff-Appellant

OF COUNSEL:

Gordon, Silberman, Wiggins and Childs, P.C.

1400 SouthTrust Tower

Birmingham, Alabama 35203

(205) 328-0640

action by the defendant that affords the plaintiff all or some of the relief be

sought through a judgment — e.g. ... a change in conduct that redresses

the plaintiff's grievances”. Jd The Court held that “[w]hen that occurs, the

plaintiff is deemed to have prevailed despite the absence of a formal judyg-

ment in his favor”. Hewitt v. Helms, 482 U.S. at 761 [citing Maher v. Gagre,

448 U.S. 122, 129 (1980)]. The Court further held that it makes no differ-

ence whether the relief comes formally or informally because “[a]t the end

of the rainbow lies not a judgment, but some action or cessation of action by

the defendant that the judgment produces — the payment of damages, cr

some specific performance, or the termination of some conduct”. /d.

11

CERTIFICATE OF SERVICE

This is to certify that a copy of the above and foregoing has

been served by United States mail, postage prepaid and prop-

erly addressed on Mr. William F. Gardner, Attorney at Law,

1700 AmSouth/Sonat Tower, Birmingham, Alabama 35203.

This the 8th day of May, 199].

Ktlort UL: |

RoBertT L. WIGGINS, JR.

APPENDIX

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Be DIAM Bee

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A-l

Ann WALKER, Plaintiff-Appellant,

v.

ANDERSON ELECTRICAL CONNECTORS, a Subsidiary of

Square D Company, Defendant-Appellee.

No. 90-7636.

United States Court of Appeals,

Eleventh Circuit.

Oct. 18, 1991.

Appeal from the United States District Court for the North-

ern District of Alabama. d

Before FAY and COX, Circuit Judges, and MORGAN,

Senior Circuit Judge.

FAY, Circuit Judge:

Plainuff-Appeilant, Ann Walker (“Walker”) appeals the out-

come of several post-trial motions in which the district court

ruled that Walker was not entitled to declaratory or injunctive

relief, nominal damages, or attorneys fees, despite a jury find-

ing of sexual harassment and invasion of privacy. For the rea-

sons that follow, we AFFIRM.

I. BACKGROUND

In August 1989, Ann Walker sued both her employer,

Anderson Electrical Connectors (“Anderson Electrical”), and

her union, Local Lodge 2601, International Association of Ma-

chinists & Aerospace Workers, AFL-CIO, under Title VII of the

Civil Rights Act of 1964,' claiming that they “condoned and

'42 U.S.C. § 2000€ et seq.

A-2

allowed [her] to be sexually harassed by management and

personnel for a continuous period, making her working condi-

tions intolerable.” Walker also brought pendent state tort

claims against Anderson Electrical for invasion of privacy and

outrage.” eae

Initially, Walker’s complaint contained a demand for jury

trial only on the pendent tort claims. Following publication of

an opinion in which the same district court judge permitted

the use of a jury trial to resolve Title VII claims,’ however,

Walker successfully added her Title VII issues to the list of

other issues to be heard by the jury. Walker v. Anderson Elec.

Connectors, 736 F.Supp. 253 (N.D.Ala. 1990).

In her complaint, Walker sought relief in the form of back-

pay, benefits, lost seniority, loss pension, declaratory and in-

junctive relief, and attorneys’ fees and costs for the alleged

Title VII violation. Walker also sought actual and punitive

damages for the pendent tort claims. At the pre-trial confer-

ence, however, Walker narrowed her grocery list of remedies

by dropping her request for a declaratory judgment and an

injunction. Walker’s position statement, as drafted by Walker

and incorporated into the pre-trial order by the court, reads as

follows:

As a result of these discriminatory actions of the de-

fendants, the plaintiff seeks back-pay (including in-

terest), benefits, lost seniority and loss pension. The

plainuff seeks compensatory and punitive damages

according to proof against the defendants for inva-

sion of privacy and tort of outrage. The attorney also

seeks a reasonable attorney’s fee, costs, and expenses

of this litigation.

Following four days of trial, the jury returned its verdict

through the use of special interrogatories. The jury found that

*The claim of outrage never reached the jury. It was dismissed on a mo-

uion for summary judgment.

* Beesley v. The Hartford Fire Insurance Co.,'717 F.Supp. 781 (N.D.Ala. 1989).

A-3

Anderson Electrical had committed acts of sexual harassment

against Walker in violation of Title VII and had invaded

Walker’s privacy. However, the jury also found that Walker

had sustained no monetary damage, either in the form com-

pensatory or punitive damages as a proximate result of these

violations.* In response to the interrogatories involving Local

Lodge 2601, the jury determined that the Union had commit-

ted no acts of sexual harassment against Walker.

Based on the answers to the special interrogatories, the dis-

trict court entered final judgment ordering that the

“[p]laintiff, Ann Walker, shall have and recover nothing of

defendants, or either of them.” The court also refused to grant

Walker attorneys’ fees.

Walker filed several post-trial motions affecting only Ander-

son Electrical, all of which were denied. In addition to a mo-

tion for a new trial on the subject of damages, which is not at

issue, all of the motions sought an injunction, a declaratory

judgment, nominal damages, and attorneys’ fees based on the

*The interrogatories involving Anderson Electrical and the jury’s re-

sponses to them are reprinted below.

1. Did defendant Anderson Electrical Connectors (Square D),

commit any acts of sexual harassment against plaintiff, Ann Walker,

in violation of Title VII of the Civil Rights Act of 1964... ?

YES X¥ NO _

2. ONLY if the jury has answered “YES” to Question No. 1, did

the said sexual harassment proximately cause plaintiff to lose any

ume from work?

YES __ NO X

3. ONLY if the jury has answered “YES” to Question No. | and

“YES” to Question No. 2, state the amount of wages, if any, which

plaintiff has proven by a preponderance of the evidence that she

lost as a proximate result of defendant Anderson Electrical Con-

nectors’ said conduct violating the Civil Rights Act.

7. Did defendant, Anderson Electrical Connectors (Square D),

invade the privacy of the plaintiff, Ann Walker?

YES X NO _

A-4

jury finding of sexual harassment and invasion of privacy. 742

F.Supp. 591. The denial of these motions is the subject of this

appeal.

II. DISCUSSION

A.

At the outset, Walker argues that the district court abused

its discretion by denying her declaratory and injunctive relief

in light of the jury's finding of a Title VII violation. We dis-

agree.

Walker's post-trial motion for injunctive and declaratory re-

lief was interpreted by the district court as a post-trial motion

to amend the pre-trial order. The pre-trial order stated that

Walker would seek only a money award. The district court

indicated that Walker's failure to pursue declaratory and in-

junctive relief in the pretrial order, where Walker had initially

demanded such relief in her complaint, may have been part of

a strategy to achieve a jury trial on the Title VII issues. “he

8. ONLY if the jury has answered “YES” to Question No. 7, did

the said invasion of plainuff's privacy proximately cause plaintiff

any injury?

YES_ NOX

9. ONLY if the jury has answered “YES” to Question No. 7 and

“YES” to Question No. 8, state the amount of compensatory dam-

ages, if any, which plainuff has proven by a preponderance of the

evidence that she sustained as a proximate result of said

defendant's invasion of plaintiff's privacy .. .

10. ONLY if the jury has answered “YES” to Question No. 8 and

ONLY if the jury finds that plaintiff, Ann Walker, has proven by

clear and convincing evidence that defendant Anderson Electrica!

Connectors consciously or deliberately engaged in oppression,

fraud, wantonness, or malice with regard to the plaintiff, state the

amount of punitive damages to be assessed against defendant,

Anderson Electrical Connectors, for the purpose of punishing it

and deterring similar future acts of invasion of privacy.

$

A-5

absence of any prayer for equitable relief,” the noted in its

Memorandum Opinion of July 9, 1990, “subtracted somewhat

from defendant's arguments against trial by jury.”°®

The court denied Walker’s motion to amend the pre-trial

order citing Fed.R.Civ.P. 16(e), which states that the pre-trial

order “shall control the subsequent course of action unless

modified by a subsequent order. The order following a final

pre-trial conference shall be modified only to prevent manifest

injustice.”

The district court’s decision to follow the pre-trial order can

be reversed on appeal only where the district court has abused

its discretion. Randolph County v. Alabama Power Co., 784 F.2d

1067, 1072 (11th Cir. 1986), cert. denied, 479 U.S. 1032, 107

S.Ct. 878, 93 L.Ed.2d 833 (1987); Hodges v. United States, 587

F.2d 1014 (5th Cir. 1979)® “[W]e realize that for pretrial pro-

cedures to continue as viable mechanisms of court efficiency,

appellate courts must exercise minimal interference with trial

court discretion in matters such as the modification of its or-

ders.” Hodges, 597 F.2d at 1018.

While Rule 16(e) requires that the pre-trial order be modi-

fied to “prevent manifest injustice,” in this case the modifica-

tion requested by Walker would only serve to work an injustice

against the defendant, Anderson Electrical. As the district

court pointed out in its Memorandum Opinion of July 9, 1990,

“Walker chose her strategy, forcing Anderson Electrical to

choose its strategy. It would be disingenuous of any court to

*According to Walker, the fact that declaratory and injunctive relief were

not included in the pre-trial order was simple error. “There is nothing in the

Record, and no finding by the district court, that the plainuff knowingly and

voluntarily waived [her] request for injunctive and declaratory relief. The

failure to mention such relief in the pretrial Order was merely an oversight.”

Brief for Appellant at 11.

*Decisions of the former Fifth Circuit handed down before October 1,

1981 are binding precedent in this circuit. Bonner v. City of Prichard, 661 F.2d

1206, 1209 (11th Cir. 1981) (en banc).

A6

find at this late date that this pre-trial order can be modified

post-trial in order to ‘prevent manifest injustice.’ ”

We agree with this reasoning and find that the district court

did not abuse its discretion in following the pre-trial order.

Walker pursued a damages trial and got just that. It would be

unfair to Anderson Electrical to give Walker relief which she

did not request; relief for which Anderson Electrical was never

permitted to establish a defense.

Walker’s central argument on this matter is that the district

court has not complied with Fed.R.Civ.P. 54(c). Rule 54(c)

states, in pertinent part, that “every final judgment shall grant

the relief to which the party in whose favor it is rendered is

entitled, even if the party has not demanded such relief in the

party’s pleadings.” Applying Rule 54(c) to the facts of her

case, Walker contends that she is “entitled” to equitable relief

based on the jury’s finding of sexual harassment even though

she abandoned this claim for relief in the pre-trial conference

and actively pursued a monetary award. Walker further con-

tends that Rule 54(c) and Rule 16(e) conflict under these

facts and that Rule 54(c) prevails in the event of such a con-

flict.

We see no conflict and find that Rule 54(c) does not apply

to this case. Rule 54(c) requires that the district court grant

Walker only the relief to which she is “entitled,” even when

that relief is not requested in the pleadings. But Walker did

request a declaratory judgment and an injunction in her

pleadings and then abandoned this form of relief at the pre-

trial conference in favor of something else, namely a monetary

award. Rule 54(c) simply does not sanction this type of maneu-

vering. We hold that Walker is not entitled to the relief aban-

doned in the pre-trial order and affirm the district court's

denial of her motion for injunctive and declaratory relief.

B.

Walker next argues that a jury finding of sexual harassment

in violation of Title VII mandates a court award of one dollar

:

A-7

in nominal damages and that the district court erred by not

making such an award. We disagree.

The district court did not instruct the jury on the possibility

of awarding nominal damages in the event of a finding of

sexual harassment. Walker did not request a charge on nomi-

nal damages, nor did she object to the court’s failure to make

such a charge.’

Fed.R.Civ.P. 51, which states that “(no party may assign as

error the giving or the failure to give an instruction unless that

party objects thereto before the jury retires to consider its

verdict, stating distinctly the matter objected to and the

grounds of the objection,” precludes Walker, at this late date,

from objecting to the fact that no jury instruction on nominal

damages was given at trial. The federal court's long standing

policy against additur, as an intrusion on the jury’s domain

and violation of the Seventh Amendment, also stands in the

way of Walker’s request for one dollar in nominal damages

where the jury awarded none. See Hattaway v. McMillian, 903

F.2d 1440, 1451 (11th Cir. 1990); Dimick v. Schiedt, 293 U.S.

474, 55 S.Ct. 296, 79 L.Ed. 603 (1935).

Walker argue that Carey v. Piphus, 435 U.S. 247, 98 S.Ct.

1042, 55 L.Ed.2d 259 (1978), requires the automatic award of

nominal damages upon the finding of a Title VII violation

regardless of Rule 51 and the federal courts’ dislike of additur.

Carey does not, however, address the issue of nominal damages

in a Title VII action.

Carey involved interpretation of 42 U.S.C. § 1983, which

provides remedy for violations of constitutional rights by per-

” According to Anderson Electrical, the reason that Walker did not take a

nominal damages instruction to the jury was because, “[i]f there had been

an instruction or jury interrogatory on nominal damages, the jury might

have given it, and that was a risk to be avoided by the plaintiff since she was

after substantial money.” (Brief for Appellee at 3940).

* Tide 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regula-

tion, custom, or usage, of any State or Territory, subjects, or causes

A8

sons acting under color of state law. Emphasizing the absolutc

nature of constitutional rights and “the importance to orga-

nized society that those rights be scrupulously observed,”

Carey, 435 U.S. at 266, 98 S.Ct. at 1053, the Court mandated

the award of nominal damages upon the finding of a procc-

dural due process violation even where no actual injury had

been shown. By contrast, this case involves, not a violation o!

constitutional rights, but merely, a violation of purely statutory

rights under Title VII. Nothing in Carey mandates the award of

nominal damages for statutory violations.°

Because we find that the reasoning in Carey applies only to

violations of constitutional magnitude, we decline Walker's in-

vitation to extend the rationale of Carey to Title VII cases anc

affirm the district court’s denial of Walker’s post-trial motion

for nominal damages.

C.

Finally, we come to the crux of Walker’s appeal — attor-

neys’ fees. While an award of nominal damages, an injunction

to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.

*Only, Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir. 1990), vacated, ___

US. __, 111 S.Ct 1299, 118 LEd.2d 234 (1991), has extended Carey t«-

yond the realm of 42 U.S.C. § 1983 by holding that nominal damages arc

mandatory upon the finding of racial discrimination in the making anc

enforcement of contracts in violation of 42 U.S.C. § 1981. However, the

validity of Hicks is questionable. Hicks was vacated and remanded in light

the Eighth Circuit's en banc opinion in Taggart v. Jefferson County Child

Support Enforcement, 935 F.2d 947 (8th Cir. 1991). Taggart overruled Hicks on

the issue of whether a claim for racially discriminatory termination under /2

U.S.C. § 1981 remains actionable after the Supreme Court's decision in

Patterson v. Mclean Credit Union, 491 U.S. 164, 109 S.Ct 2363, 105 L.Ed. 2!

132 (1989), thereby making the Hicks court’s pronouncements on the issuc

of nominal damages moot.

a

A-9

or a declaratory judgment would make the prospect of obtain-

ing attorneys’s fees much easier, Walker argues that even with-

out these badges of victory she is a “prevailing party” under 42

U.S.C.§ 2000e-5(k)"® and entitled to attorneys’ fees.

42 U.S.C. § 2000e-5(k) provides, in relevant part, “[i]n any

action or proceeding under this subchapter the court, in its

discretion, may allow the prevailing party, other than the Com-

mission or the United States, a reasonable attorneys’ fee as

part of the costs.” (Emphasis added). In Texas Teachers Associa-

tion v. Garland Independent School District, 489 U.S. 782, 109

S.Ct. 1486, 103 L.Ed.2d 866 (1989), the Supreme Court, in a

unanimous opinion, found improper the Fifth and Eleventh

Circuits’ use of the “central issue” test to determine prevailing

party status."' In its place, the Court established the standard

for identifying prevailing parties:

If the plaintiff has succeeded on “any significant issue

in litigation which achieve[d] some of the benefit the

parties sought in bringing suit,” the plaintiff has

crossed the threshold to a fee award of some kind...

The touchstone of the prevailing party inquiry must

be the material alteration of the legal relationship of

the parties in a manner which Congress sought to

promote in the fee statute.

Id. at 791-93, 109 S.Ct. at 1493-94 (quoting Nadeau v. Helgemoe,

581 F.2d 275, 278-89 (1st Cir. 1978)).

°Though the parties have cited 42 U.S.C. § 1988 as the controlling fee

shifting provision in this case, 42 U.S.C. § 2000e-5(k) is the appropriate fee

shifting provision in Tide VII actions. This distinction is a technical one,

however, as Congress intended the standards for awarding fees under these

two statutes to be the same. See S.Rep. No. 1011, 94th Cong., 2d Sess. 3-4,

reprinted in 1976 U.S. Code Cong. & Admin. News 5908, 5912. See also Cofteld v.

City of Atlanta, 648 F.2d 986, 987 n. 3 (5th Cir. Unit B 1981) (“The language

of section 1988 tracks that of section 2000e-5(k).”).

'' Under the central issue test, the plaintiff must achieve the primary relief

sought in order to be deemed a “prevailing party.” It is not enough to win

on an important side issue. See Martin v. Heckler, 773 F.2d 1145, 1149 (11th

Cir. 1985) (en banc).

A-10

Walker claims that the jury verdict materially alters the legal!

relationship between the parties in the same fashion as an

injunction or declaratory judgment. But Walker fails to suc-

cessfully distinguish Hewitt v. Helms, 482 U.S. 755, 107 S.Ct.

2672, 96 L.Ed.2d 654 (1987) and Rhodes v. Stewart, 488 U.S. 1,

109 S.Ct. 202, 102 L.Ed.2d 1 (1988), two Supreme Court cases

with similar fact patterns which reject similar arguments. We

find these cases controlling.

In Hewitt, a plaintiff was denied attorneys’ fees, despite a

finding by the Third Circuit that his due process rights hac

been violated. Hewitt, 482 U.S. at 757-59, 107 S.Ct. at 2674-75.

The plaintiff, a prisoner in the Pennsylvania state prison sys-

tem, sued prison officials for placing him in disciplinary con-

finement without due process of law. The district court dis-

missed the case in a summary judgment motion. On appcual,

the Third Circuit reversed, finding that there had, indecd,

been a violation of due process. The case was remanded to thc

district court with instructions to award the plaintiff damages

unless the defendants were able to assert an immunity de-

fense. Finding such a defense, the district court again dis.

missed the case in a motion for summary judgment and in «

later ruling denied the plaintiff attorneys’ fees. With regard to

the denial of attorney’s fees, the Third Circuit reversed. Equat-

ing its initial finding of a due process violation with a declara-

tory judgment, the Third Circuit held that the plaintiff was a

“prevailing party” under 42 U.S.C. § 1988 and entitled to an

award of attorney's fees. The Supreme Court rejected the

Third Circuit's rationale and reversed, holding:

In all civil litigation, the judicial decree is not the end

but the means. At the end of the rainbow lies not a

judgment, but some action (or cessation of action)

by the defendant that the judgment produces-the

payment of damages, or some specific performance,

or the termination of some conduct. Redress is

sought through the court, but from the defendant.

This is no less true of a declaratory judgment suit

than of any other action. The real value of the judi-

A-11

cial pronouncement — what makes it a proper judi-

cial resolution of a “case or controversy” rather than

an advisory opinion — is the settling of some dispute

which affects the behavior of the defendant towards the

plaintiff.

Heuntt, 482 U.S. at 761, 107 S.Ct. at 2676.

Walker argues that Hewitt is not controlling because, unlike

the plaintiff in Hewitt, she has achieved much more than a

hollow pronouncement on a matter of law. Walker points out

that she won a favorable jury determination on the ultimate

factual issue in the case and that this determination was an

important part of “settling the score” with her employer. The

jury finding of sexual harassment, she contends, has forever

changed the legal relationship between the parties by foreclos-

ing the defendant’s denial of such sexual harassment.

While we find this argument appealing, it simply does not

conform to the basic premise of Hewitt. With regards to the

plainuff in Hewitt, the Court noted that, “(t]he only ‘relief’ he

received was the moral satisfaction of knowing that a federal

court concluded that his rights had been violated.” Hewitt, 482

U.S. at 762, 107 S.Ct. at 2676. Walker received nothing more.

The jury’s finding of sexual harassment no more altered the

legal relationship between the parties than the Third Circuit’s

finding of a due process violation in Hewitt. And, just as the

Third Circuit's finding was an important first step on the road

to obtaining relief and “affect[ing] the behavior of the defen-

dant towards the plaintiff,” id. at 761, 107 S.Ct. at 2676, so too

is the jury’s finding of sexual harassment an important first

— step for Walker. But, as Hewitt suggests, such a finding, without

more, will not ordain a litigant the prevailing party.

The Supreme Court’s decision in Rhodes v. Stewart, 488 U.S.

1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988), reinforces our holding

today. In Rhodes, two plaintiffs obtained a declaratory judg-

ment for violations of their First Amendment rights as prison-

ers in a state corrections facility. Prior to the court’s an-

nouncement of declaratory relief, however, one of the plain-

Ee

A-12

tiffs was released from prison and the other died. The Su-

preme Court held that the declaratory judgment could not,

under those circumstances, affect the legal relationship be-

tween the parties. The plaintiffs’ victory was moot despite the

fact that they were awarded a declaratory judgment. As the

Court noted, “[a] declaratory judgment ... is no different

from any other judgment. It will constitute relief ... if, and

only if, it affects the behavior of the defendant toward the

plainuff.” Rhodes, 488 U.S. at 4, 109 S.Ct. at 203.

While the jury’s finding of sexual harassment in this case is

not moot as it concerns Walker, Walker did not attain even a

declaratory judgment as did the plaintiffs in Rhodes. Instead,

Walker’s only claim to the spoils of victory is a jury finding of

sexual harassment. “That is not the stuff of which legal victo-

ries were made.” Hewitt, 482 U.S. at 760, 107 S.Ct. at 2675.

Therefore, in accordance with Heuitt and Rhodes, we hold that

to be a prevailing party for purposes of 42 U.S.C. § 2000e-5(k),

requires the attainment of something more tangible than a

jury finding of sexual harassment. The district court did not

err in denying Walkers’ request for attorney’s fees.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

denial of Walker’s post-trial motions for declaratory and in-

junctive relief, nominal damages, and attorneys’ fees.