Opposition Brief — Walker v. Anderson Electrical Connectors

~<—~ Supreme Court, U.S.

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JUN 10 1992

NO. 91-1794 OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER 1992 TERM

ANN WALKER,

Petitioner,

v.

ANDERSON ELECTRICAL CONNECTORS,

SQUARE D COMPANY,

Respondent.

BRIEF IN OPPOSITION

Crawford S. McGivaren, Jr.

(Counsel of Record)

William F. Gardner

Cabaniss, Johnston, Gardner,

Dumas & O’Neal

1700 AmSouth-Sonat Tower

P. O. Box 830612

Birmingham, Alabama 35283-0612

(205) 252-8800

Counsel for Respondent

ee a ee ee

7

QUESTION PRESENTED

When a plaintiff, Petitioner here, proceeds to trial on

money claims and the jury returns a zero dollar verdict, resulting

in Final Judgment that the plaintiff shall recover nothing, is the

plaintiffs law firm entitled to an attorneys’ fees award on the

theory she is the prevailing party?1/

l/ The parties to the case are or have been former

employee Phyllis Ann Harris Walker, Square D Company-

Anderson Electrical Connectors, ang International Associ-

ation of Machinists & Aerospace Workers, AFL-CIO, and

its Local Lodge No. 2601. Since the only issue is attor-

neys’ fees, the only presently interested parties are Square

D Company and the Petitioner’s law firm (Gordon, Silber-

man, Wiggins & Childs of Birmingham and Huntsville,

Alabama).

«fe

TABLE OF CONTENTS

Page

CAFESTION PURMENTED 2.2 on. cee Piece cekdaees i

pp Be pe rrr) ee as ii

TAREE GE ALTISOMEREES 6 oo cece neeescetees wena iii

SEAR TIGEINE COW EUUEE GARE (6 un kc beeen seneseuns 2

REASONS FOR DENYING THE WRIT ............. 9

I. The Petitioner is Wrong in Saying

This Case Will Be Controlled by Farrar ........... 9

II. There is No Circuit Split

AE SO GA Oo en 5a eR ee 11

III. The Court Below Correctly Applied

Supreme Court Precedent... 22. cece cece nencns 13

IV. Rule 14.5 Should Be Applied

to a Petition With Attorneys’

oe fg Be. re er er 17

CAP RMMEELIET sch cob eons 055 ta eke bee eee ae eres 18

Cee eekees GF SERVES 6600 save wee ew een 19

APPENDIX |

A. Court of Appeals Decision, October 18, 1991

B. Court of Appeals Denial of Rehearing

January 9, 1992

S District Court Opinion and Judgment

July 9, 1990

D. District Court Opinion, August 6, 1990

Addendum, August 10, 1990

E. District Court Order, August 16, 1990

- ili -

TABLE OF AUTHORITIES

Page

Supreme Court

Hewitt v. Helms, 482 U.S. 755

a Eg a a 6, 10, 12, 13, 15

Lewis v. Continental Bank Corp.,

MT I REPO) ook ck ewan es ees 15

Rhodes v. Stewart, 488 U.S. 1 (1988) ............. 6, 12, 13

Texas State Teachers Association

v. Garland Independent School

District, 489 U.S. 782, 791-793

EE 6, 12, 13

Courts of Appeals

Crabtree v. Collins, 900 F.2d 79

aa ss gale Pw eke eke 6 15

Dahlem v. Board of Education of Denver,

mae wee too (teen Cir, 1990) ... ww ee ces 15

Esparza v. Valdez, 862 F.2d 788

(10th Cir. 1988), cert. denied,

ne 15

Estate of Farrar v. Cain and Hobby,

BE DN | 9

Gamer v. Wal-Mart Stores, 807 F.2d 1536

NONE TD cc cc cca eeavscness 9,12

o We

TABLE OF AUTHORITIES

Courts of Appeals

Lewis v. Kendrick, 944 F.2d 949

(Ist Cir. 1991) ............ Nea

National Coalition v. Thomas,

828 F.2d 42 (D.C. Cir. 1987) .....

Robinson v. Arigoshi, 933 F.2d 781

(9th Cir. 1991) .... 0.0... eee ee

Romberg v. Nichols, 953 F.2d 1152

GO Gilly SOUED 4 5 oc cZ wen Kany es

Ruggiero v. Krzeminski, 928 F.2d 558

CAME: PED (446-6 & 6c kca WS 8 0/0!0

Swanson v. Elmhurst Chrysler Plymouth,

882 F.2d 1235 (7th Cir. 1989), cert.

denied, 493 U.S. 1036 (1990 ......

Wilder v. Bernstein, 944 F.2d 1028

(2nd Cir. 1991) ..........-000.

Page

Soyer ee 11

TARLE OF AUTHORITIES

Page

Statutes and Rules

Title VII of the Civil Rights Act

(42 USC. § M0008 Ot 000.) .. cece wunss passim

Serge Cat SA FE en Say nas eee en os eEeo 17

Federal Rules of Civil Procedure Rule 16.............. 5

Federal Rules of Civil Procedure Rule 51.............. 10

~

DECISIONS BELOW

The only issue presented by the —_— is the claim by the

plaintiffs law firm for attorneys’ fees.” This was "the crux" of

the plaintiffs appeal to the Court of Appeals. The Eleventh

Circuit’s opinion affirming the denial of attorneys’ fees is

reported at 944 F.2d 841 (11th Cir. 1991) (erroneously cited by

the Petitioner as "112 F.2d 1159").3/

The petition is put together by misstating both the

Eleventh Circuit’s opinion and the Trial Court’s opinions on the

post-trial motions which were the subject of the appeal. All of

the decisions of the courts below are therefore set forth in the

Appendix to this brief so this Court can have the accurate record

before it.¥/

2/ Petition at page 2 ("This Petition only addresses the

denial of attorney’s fees.").

+ Petition at page 1.

+ The opinions are set forth as follows in the Appen-

dix: :

A: Court of Appeals opinion on October 18, 1991,

944 F.2d 841.

B: Denial of rehearing on January 9, 1992.

C: District Court opinion and judgment on July 9,

1990, 742 F.Supp. 591.

D: District Court opinion on August 6, 1990 and

addendum on August 10, 1990, 742 F.Supp. 596.

E: District Court order on August 16, 1990.

a ee

~~

STATEMENT OF THE CASE

The holdings of the courts below are barely recognizable

in the Petitioner’s statement of the case. It is therefore necessary

to provide an accurate summary of the case.

A. _ TRIAL COURT:

The plaintiff sued her Employer and Union alleging she

had been sexually harassed by four co-workers.2/ The com-

plaint was based on Title VII of the Civil Rights Act (42 U.S.C.

§ 2000e et seq.) with pendent State claims for invasion of privacy

and outrage.

During the pendency of the case, the Court ruled in

another case that parties have the right to trial by jury on Title

VII claims. Following that ruling, the plaintiff, who had already

demanded trial by jury on the State law claims, moved for a jury

trial on the Title VII claim as well.

The plaintiff's jury trial motion, which was resisted by the

defendants, was still pending when the pretrial conference was

held. The complaint had sought a declaratory judgment and

injunction as well as damages. “At the pre-trial conference,

however, Walker narrowed her grocery list of remedies Dy

dropping her request for a declaratory judgment and an injunc-

tion.” (A-2).

The District Court thereafter granted the motion for trial

by jury under Title VII, pointing out that:

2/ The accused were, like the plaintiff, hourly co-

workers and Union members and not managers or super-

visors.

ce

She seeks damages in the form of lost wages and

benefits as well as compensation for her physical

pain and mental suffering. Lastly, she seeks puni-

tive damages. (736 F.Supp. at 254).

The Petitioner tells this Court that an injunction, declara-

tory judgment, and nominal damages were denied "because they

were mustakenly not preserved in the pretrial order,"®/ but that

is not so.

First, the denial of nominal damages had nothing to do

with the Pretrial Order. The Court of Appeals held that FRCP

Rule 51 precluded nominal damages because the plaintiff did not

request a jury instruction on nominal damages and did not object

to the jury instructions not including nominal damages. (A-8).

Second, neither the District Court nor the Court of

Appeals accepted the plaintiffs assertion that the dropping of the

declaratory judgment and injunction claims was a mistake, and it

should not have been repeated in this Court. It was a tactical

maneuver to enhance the plaintiffs then pending motion for a

jury trial on the Title VII claim.Y

Following a four day trial, the case was submitted to the

jury on Special Jury Interrogatories. The jury returned its verdict

8/ Petition at page 2.

// The Court of Appeals observed that:

"The distr‘ct court indicated that Walker’s

failure to pursue declaratory and injunctive

relief in the pre-trial 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." (A-5).

_

finding that there had been harassment and invasion of privacy

but that it did not proximately cause any wage loss or injury. The

jury awarded the plaintiff nothing in the way of money. As the

Trial Court said in denying the plaintiff's motion for a new trial

on damages, "this jury found that there was no injury whatsoever

traceable to any wrong committed by Anderson Electrical." (D-5).

With the plaintiff having proceeded through trial on her

monetary claims, and with the jury having returned a zero dollar

verdict, the Court entered judgment that the plaintiff "shall have

and recover nothing of defendants, or either of them.” (C-1).

The plaintiff filed a series of post-trial motions for a new

trial on damages, a declaratory judgment, an injunction, nominal

damages, and a declaration that she was the prevailing party

entitled to an attorneys’ fee award, all of which were denied. In

denying the motion for prevailing party status for attorneys’ fees,

the Trial Court said that:

Walker is asking this court to reach conclu-

sions beyond the issues presented and not justified

by the evidence. Walker sought no injunctive

relief, and there was no credible evidence that any

change in procedure or rule by Anderson Electrical _

was the proximate result of Walker having brought

suit. (D-6).

The Petitioner tells this Court that the results she sought

after the trial were denied "because the jury verdict was found to

have served the same purpose and made them unnecessary" and

that "[t]he trial court below found that the jury verdict was the

equivalent of formal injunctive relief....8/ That seriously

musstates the Trial Court’s decision, and it has nothing to do with

the Court of Appeals’ decision.

8/ Petition at pages 2 and S.

x

The plaintiff's post-trial motions included a contention for

an injunction for females generally, based primarily on a notice

regarding the jury verdict which the Union had posted on the

Union bulletin board.2/ The Trial Court rejected the conten-

tion after holding that:

Walker chose her strategy, forcing Anderson

Electric to choose its strategy. It would be disin-

genuous of any court to find at this late date that

this pre-trial order can be modified post-trial in

order to "prevent manifest injustice." See Rule

16(e). (C-9-10).

The Court then went on to comment that even if it could

assume the power to issue an injunction for females generally, it

“would decline to do so" for five separate reasons, one of which

was "that Title VII itself, bolstered by the jury finding in this case,

provides an adequate warning to Anderson Electrical and a

sufficient guarantee against future sexual harassment." (C-10).

The Petitioner thus fails to tell this Court (1) that the Trial

_ Court’s comment was only one of five dicta reasons for declining

to issue an injunction for females in general even if the conten-

tion were not barred by Rule 16(e) and (2) that it had reference

to the post-trial contention for a "class injunction" in a non-class

action with a Pretrial Order which abandoned the injunctive

request of the complaint. More serious is the fact that the

Petitioner elevates the comment into a holding,22/ which it

obviously was not.

The Petitioner’s departure from the record sinks to its

deepest depth in saying that the Court of Appeals accepted this

2/ Plaintiff's post-trial motion on June 28, 1990, pages

4-5.

10/ Petition at pages 1-2.

-

"finding" (the comment having been transformed by the Petitioner

into a "finding") and held that formal relief is necessary for

attorney’s fees+/ The fact is that the comment had no role

at all in the Court of Appeals’ decision. The Court of Appeals’

decision was based on Rwe 16(e) barring the plaintiff from

changing her strategy after the trial and zero dollar verdict. (A-5-

7).

B,_ __ COURT. OF APPEALS:

The plaintiff appealed to the Eleventh Circuit from the

denial of the post-trial motions, with the outcome that the Court

of Appeals affirmed. 944 F.2d 841 (11th Cir. 1991). On "the crux

of Walker’s appeal-attorneys’ fees," the Court analyzed the issue Pp

in the framework of the plaintiffs’ contention that regardless of

not having a declaratory judgment or injunction or nominal

damages, she should have prevailing party status for attorneys’

fees. (A-10). The Court applied the "touchstone" standard of

Tex.4s State Teachers Association v. Garland Independent School

District, 489 U.S. 782 (1989), treated as "controlling" the decisions

in Hewitt v. Helms, 482 U.S. 755 (1987) and Rhodes v. Stewart, 488

U.S. 1 (1988), and held that "[t]he district court did not err in

denying Walker’s request for attorneys’ fees." (A-11-14).

In contrast, the Petitioner’s account of the Eleventh

Circuit’s decision cannot be reconciled with the Court’s opinion.

First, the Petitioner says the Court of Appeals held that

the absence of a formal remedy was "fatal" to attorneys’

fees42/ The Court neither said nor intimated any such idea.

On the contrary, the Court analyzed the attorneys’ fee contention

in the context of the plaintiff's argument that even without formal

11/ Petition at page 2.

12/ Petition at page 2.

a

remedies, she should be regarded as the prevailing party for

attorneys’ fees.

Second, the Petitioner says the Court reasoned that a jury

verdict of sexual harassment providing a warning and guarantee

against harassment does not materially alter the relationship of

the parties.14/ There is no such reasoning anywhere in the

Court’s opinion. The Petitioner’s assertion is nothing more than

an effort to take the dicta comment by the Trial Court regarding

an injunction for females generally and transplant it into the

Court of Appeals’ decigyon. In fact, it had no role in the Court

of Appeals’ decision.

. A MATTER OF STRATEGY:

This case was preeminently a matter of trial strategy

geared to money until the jury verdict. The plaintiff moved for

and obtained a jury trial on the Title VII claim after dropping the

claims for equitable remedies. (A-2-3). The trial evidence

included the plaintiff's "great [money] expectations from this case,

as testified to by some of the witnesses" (C-11). The Respondent

13/ The Court started its analysis of the attorneys’ fee

issue as follows:

Finally, we come to the crux of

Walker’s appeal — attorneys’ fees. While an

award of nominal damages, an injunction or

a declaratory judgment would make the

prospect of obtaining attorneys’s fees much

easier, Walker argues that even without

these badges of victory she is a ’prevailing

party’ under 42 U.S.C. § 2000e-5(k) and

entitled to attorneys’ fees. (A-10).

/ oe

13/ Petition at page 2.

” 8-

met and defeated her on that field of battle she had chosen, with

the jury returning a zero dollar verdict. The Court of Appeals

accurately summarized the case as follows:

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. (A-7).

i.

REASONS FOR DENYING THE WRIT

From the launching pad of the seriously distorted account

of the decision below, the Petitioner argues (1) that this case is

identical to another case before the Court on the role of formal

relief for attorneys’ fees and (2) that the Circuits are split on the

role of formal relief for attorneys’ fees. Both arguments are

inherently baseless because "formal relief" had nothing to do with

the Eleventh Circuit’s decision. The facts are that the Court of

Appeals resolved the issue in the context of the plaintiffs position

that formal relief is not necessary to prevailing party status.

Moreover, both of the reasons argued by the Petitioner are

wrong and could not warrant a continuation of this quest for

attorneys’ fees.

L

THE PETITIONER IS WRONG IN SAYING

THIS CASE WILL BE CONTROLLED BY FARRAR

It defies reality for the Petitioner to say this case is

"identical" to and "will be controlled" by Esiate of Farrar v. Cain

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

1159 (1992).42/ The question presented in Farrar is:

Does 42 USC 1988 authorize award of reasonable

attorneys’ fees to civil rights plaintiffs who recover

nominal damages? 60 U.S.L.W. 3563.

That has nothing to do with this case. The law in the

Eleventh Circuit has been and is that nominal damages will

trigger prevailing party status for attorneys’ fees. Garner v. Wal-

Mart Stores, 807 F.2d 1536 (11th Cir. 1987). The Petitioner

1)/ Petition at page 3.

« 1s

cannot conceivably argue that any attorneys’ fee award in this

case might ensue from the outcome in Farrar. If this Court holds

in Farrar that nominal damages create attorneys’ fee entitlement,

it would have no effect at all on this case.

The reason for the plaintiff's post-trial motion for nominal

damages was to obtain attorneys’ fees. The plaintiff failed

because, for trial strategy reasons, she argued to the jury for real

money and said nothing about nominal damages, did not request

a jury instruction on nominal damages, and did not take excep-

tion to the jury instructions not addressing nominal damages.

The door-closer was Rule 51, not any concepts of "formal relief"

or the question of whether nominal damages trigger attorneys’

fees.

The fact is that this Court has already resolved the issue

which is the subject of this case. As in Hewitt v. Helms, 482 U.S.

755 (1987), this case concerned "the peculiar-sounding question

whether a party who litigates to judgment and loses on all of his

claims can nonetheless be a ’prevailing party’ for purposes of an

award of attorney’s fees." The answer in Hewitt was No. That

was among the Supreme Court precedents applied by the court

below as "controlling." (A-12). There is no reason for further

debate on the issue.

16/ As the Eleventh Circuit said:

Fed.R.Civ.P. 51, which states that

’[n]o 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. (A-8).

-ll-

II.

THERE IS NO CIRCUIT

SPLIT AFFECTING THIS CASE

The Petitioner’s "Circuit split" argument is both inaccurate

and irrelevant for several reasons. :

1. Erroneous statement of the Circuit split: The

Petitioner begins by erroneously stating the Circuit split. She says

it is a division over whether formal relief is necessary for

attorneys’ fee awards,1Y and that is not so. The Circuit split

consists of the issue before the Court in Farrar of whether

nominal damages result in prevailing party status.

That has no bearing on this case where attorneys’ fees

could not be based on nominal damages, not because of any

proposition of law, but because the plaintiff's post-trial motion for

nominal damages was barred by Rule 51. (A-8).

2. Erroneous statement of Eleventh Circuit law: It is

beyond reason for the Petitioner to say that the Fifth and

Eleventh Circuits are at odds with the Seventh and Ninth

Circuits.42/ In Farrar itself, the Fifth Circuit pointed out that

"[oJur holding tocay conflicts with opinions of the Second,

Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits." (941 F.2d

at 1316).

17/ Petition at page 3.

18/ This was the issue in all the cases cited by the

Petitioner, consisting of Farrar, Ruggiero v. Krzeminski, 928

F.2d 558 (2nd Cir. 1991), and Romberg v. Nichols, 953 F.2d

1152 (9th Cir. 1992).

19/ Petition at page 3.

-12-

The Eleventh Circuit held that nominal damages estab-

lishes attorneys’ fee entitlement in Garner v. Wal-Mart Stores, 807

F.2d 1536 (11th Cir. 1987), The Petitioner relied on this

Eleventh Circuit law in the court below. She cannot now profess

to be unaware of it.

3. n “isi w: The

Petitioner tells this Court that in the Eleventh Circuit "formality

of relief controls fee entitlement rather than the material

alteration of the parties’ legal relationship,"22/ and that is

entirely contrary to the record. The opinion of the Court of

Appeals establishes that:

First, the Court decided the attorneys’ fee issue in the

framework of the Petitioner’s argument that she should be

accorded prevailing party status without regard to having no

formal remedies. (A-10).

Second, the Court applied the governing standard,

established by Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782, 791-793 (1989), that

“[t]he 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."

(A-11).

Third, the Court held that this standard of a material

alteration of the legal relationship of the parties was not satisfied,

the "controlling" precedents being Hewitt v. Helms, 482 U.S. 755

(1987) and Rhodes v. Stewart, 488 U.S. 1 (1988). (A-11-14).

The Petitioner is thus seeking attorneys’ fees in the

Supreme Court based on a fictional Circuit split and misstated

rendition of both Eleventh Circuit law and the decision below.

20/ Petition at page 3.

tes

I.

THE COURT BELOW CORRECTLY

APPLIED SUPREME COURT PRECEDENT

Even more importantly, the Eleventh Circuit’s decision was

based on "controlling" Supreme Court precedent, and it would be

needless to review a decision precisely in accord with this Court’s

recent precedents.

The plaintiffs post-trial motions argued that the case

produced a change in procedures, and that contention came to an

end with the Trial Court’s finding that "there was no credible

evidence that any change in procedure or rule by Anderson

Electrical was the proximate result of Walker having brought

suit." (D-6).

The remaining argument was that while she went into the

courtroom for money and came out with none, she had a verdict

saying she had been harassed which was the equivalent of a

declaratory judgment or injunction. The Eleventh Circuit

analyzed this contention in light of this Court’s precedents in

Texas State Teachers Association, 489 U.S. 782 (1989), Hewitt v.

Helms, 482 U.S. 755 (1987), and Rhodes v. Stewart, 488 U.S. 1

(1988) and held that it did not constitute a material alteration of

the legal relationship of the parties. (A-10-14).

There could be no dispute with the Eleventh Circuit’s

application of the standard of "a material alteration of the legal

relationship of the parties” since that is the "touchstone of the

prevailing party inquiry" which this Court established in Texas

State Teachers Association, 489 U.S. at 791-793. Similarly, there

could be no dispute with the Court treating Hewitt v. Helms, 482

U.S. 755 (1987) and Rhodes v. Stewart, 488 U.S. 1 (1988), as

"controlling."

+”

Hewitt and Rhodes are indeed controlling. The plaintiff in

Hewitt, having obtained a ruling that the complaint should not

have been dismissed because he "suffered a denial of due

process," was accorded prevailing party status by the court below.

This Court reversed and held that "a judicial statement that does

not affect the relationship between the plaintiff and the defendant

is not an equivalent [of declaratory relief]," and that there must

be a judicial resolution "which affects the behavior of the defen-

dants toward the plaintiff." In terms which conclusively control

the present case, the Court said that:

As a consequence of the present lawsuit, Helms

obtained nothing from the defendants. The only

relief he received was the moral satisfaction of

knowing that a federal court concluded that his

rights had been violated. (482 U.S. at 761-762).

So also in Rhodes, the court below had awarded attorneys’

fees based on a declaration that the defendants had failed to

follow constitutional standards. Once again, this Court reversed,

pointed out that the court below "misapprehended our holding in

Hewitt," reiterated that a declaration "will constitute relief, for

purposes of § 1988, if, and only if, it affects the behavior of the

defendant towards the plaintiff," and said that:

In this case, there was no such result.... In the

absence of relief, a party cannot meet the threshold

requirement of §1988 that he prevail, and in

consequence he is not entitled to an award of attor-

ney’s fees. (488 U.S. at 4).

The core of the case is that the-Petitioner is attempting to

obtain attorneys’ fees by inventing the "formality of relief" idea.

That is a non-existent issue. It has long been settled that "relief

need not be judicially decreed in order to justify a fee award," as

the Court said in Hewitt. (482 U.S. at 240). No such issue is

involved in Farrar, nor is there any Circuit split on any such issue,

nor was it in any respect involved in the decision below. The

_

Court of Appeals instead applied this Court’s precedents in Jexas

State Teachers Association, Hewitt, and Rhodes. That and nothing

more is all that the case concerns.

These precedents relied on by the court below have been

reiterated by this Court in Lewis v. Continental Bank Corp., 494

U.S. 472, 483 (1990) (citing Rhodes for the holding that the

plaintiff was not a prevailing party on appeal) and have been

applied by the Courts of Appeals in a consistent line of cases

denying attorneys’ fees, including cases which this Court has

declined to review. National Coalition v. Thomas, 828 F.2d 42

(D.C. Cir. 1987) (stating with reference to Hewitt, that "We

believe that the Court’s reasoning is fully applicable in this

ense."); Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991) ("In Texas

Siate Teachers Association . . . the Court spoke of a ’resolution of

the dispute which changes the legal relationship between the

parties.” ); Wilder v. Bernstein, 944 F.2d 1028 (2nd Cir. 1991)

(applying the "touchstone" of Texas State Teachers Association);

Crabtree v. Collins, 900 F.2d 79 (6th Cir. 1990) (applying Texas

State Teachers Association, Hewitt, and Rhodes in holding the

plaintiff was not a prevailing party for attorneys’ fees); Swanson

v. Elmhurst Chrysler Plymouth, 882 F.2d 1235 (7th Cir. 1989), cert.

denied, 493 U.S. 1036 (1990) (citing Rhodes for the holding that

"since Swanson cannot recover any award under Title VII,

Elmhurst must receive judgment even if there has been a

violation of that statute."); Robinson v. Arigoshi, 933 F.2d 781 (9th

Cir. 1991) ("The Supreme Court’s decision in Hewitt v. Helms, 482

U.S. 755, 761-63, 107 S.Ct. 2672, 2676-77, 96 L.Ed.2d 654 (1987),

instructs us to deny such a request."); Dahlem v. Board of

Education of Denver, 901 F.2d 1508 (10th Cir. 1990) ("The

Supreme Court has on several occasions discussed what is

required to be a prevailing party,” citing Texas State Teachers

Association, Hewitt, and Rhodes.); Esparza v. Valdez, 862 F.2d 788

(10th Cir. 1988), cert. denied, 492 U.S. 905 (1989) (citing Rhodes

-and Hewitt for the holding that "Because plaintiffs received no

relief on the merits of their claims as a result of this suit, they are

~ oe

not prevailing parties within the meaning of 42 U.S.C. § 1988 and

are not entitled to attorney’s fees.").

In sum, consistent with both stare decisis and this Court’s

time and resources, there is every reason to decline further

review of this decision which faithfully adhered to recent

Supreme Court precedent. Finally, the Respondent, having

successfully defended this lawsuit on the monetary battleground

selected by the Petitioner, should not be Subjected to any further

pursuit of attorneys’ fees following the zero dollar verdict.

IV.

RULE 14.5 SHOULD BE

APPLIED TO A PETITION WITH

ATTORNEYS’ FEE AS THE ONLY OBJECT

The petition in this case falls far short of being an

accurate rendition of the record. In a case concerning the rights

of parties, such departures could arguably be excused.

But in this case, which concerns only attorneys’ fees and

nothing else, still another reason for denial of the writ is the

importance of adherence to accuracy. Compare Supreme Court

Rule 14.5 ("The failure of a petitioner to present wiih accuracy

. . . whatever is essential to a ready and adequate understanding

of the points requiring consideration will be a sufficient reason

for denying the petition.").

sor

CONCLUSION

There is nothing warranting further review of the attor-

neys’ fee issue in this case. The Eleventh Circuit’s opinion itself

conclusively refutes the Petitioner’s contention that the decision

turned on formality of judicial relief. All that the Court required

was that the plaintiff satisfy the "touchstone" of a material

alteration of the legal relationship of the parties.

This holding was premised on and is entirely consistent

with this Court’s precedents in Texas State Teachers Association,

Hewitt, and Rhodes. The petition should be denied.

Respectfully submitted,

‘

t

Crawfotd S. McGivaren, Jr. ‘=,

(CounseR\of Record)

William F. Gardner

j Cabaniss, Johnston, Gardner,

Dumas & O’Neal

| 1700 AmSouth-Sonat Tower

P. O. Box 830612

Birmingham, Alabama 35283-0612

(205) 252-8800

Counsel for Respondent

mF

CERTIFICATE OF SERVICE

I hereby certify that this BRIEF IN OPPOSITION has

been served by United States mail, first class postage prepaid, on:

Robert L. Wiggins, Jr., Esq.

Gordon, Silberman, Wiggins & Childs

1400 SouthTrust Tower

Birmingham, Alabama 35203

Counsel of Record for Petitioner.

Tt

This /O— day of June, 1992.

) !

APPENDIX A

Court of Appeals Decision

( Jctober Ld. | YY |

A-1

APPENDIX A

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

Northern District of Alabama.

Before FAY and COX, Circuit Judges, and MORGAN,

Senior Circuit Judge.

FAY, Circuit Judge:

Plaintiff-Appellant, Ann Walker ("Walker") appeals the

Outcome 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 finding

ot sexual harassment and invasion of privacy. For the reasons

that follow, we AFFIRM.

A-2

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 Machinists

& Aerospace Workers, AFLCIO, under Title VII of the Civil

Rights Act of 1964,1/ claiming that they "condoned and allowed

[her] to be sexually harassed by management and personnel for

a continuous period, making her working conditions intolerable."

Walker also brought pendent state tort claims ——— Anderson

Electrical for invasion of privacy and outrage.

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 injunc-

tive 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 conference, 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:

V/ 42 U.S.C. § 2000e et seq.

‘ .

2/ The claim of Outrage never reached the jury. It was

dismissed on a motion for summary judgment.

3/ Beesley v. The Hartford Fire Insurance Co., 717

F.Supp. 781 (N.D.Ala. 1989).

|

A-3

As a result of these discriminatory actions of the defen-

dants, the plaintiff seeks back-pay (including interest),

benefits, lost seniority and loss pension. The plaintiff

seeks compensatory and punitive damages according to

proof against the defendants for invasion 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

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 of compensatory or

Punitive damages, as a proximate result of these violations. Y

4/ The interrogatories involving Anderson Electrical

and the jury’s responses to them are reprinted below.

1. Did defendant Anderson Electrical

Connectors (Square D), commit any acts of sexual

harassment against plaintiff, Ann Walker, in viola-

tion of Title VII of the Civil Rights Act of 1964

9

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 time from

work?

YES_ NO _X_

3. ONLY if the jury has answered "YES"

to Question No. 1 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 a proximate result of defendant

Anderson Electrical Connectors’ said conduct

violating the Civil Rights Act.

(continued...)

A-4+

In response to the interrogatories involving Local Lodge 2601, the

jury determined that the Union had committed no acts of sexual

harassment against Walker.

Based on the answers to the special interrogatories, the

district court entered final judgment ordering that the "[p]laintiff,

4/(. continued)

$

7. Did defendant, Anderson Electrical

Connectors (Square D), invade the privacy of the

plaintitf, Ann Walker?

YES A. NO...

8. ONLY if the jury has answered "YES"

to Question No. 7, did the said invasion of plain-

tiffs privacy proximately cause plaintiff any injury?

Th. he A.

9. ONLY if the jury has answered "YES"

to Question No. 7 and "YES" to Question No. 8,

State the amount of compensatory damAges, if

any, which plaintiff has proven by a preponderance

of the evidence that she sustained as a proximate

result of said defendant’s invasion of plaintiffs

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

Electrical 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

A-5

Ann Walker, shall have and recover nothing of defendants, or

either of them." The court also refused to grant Walker attor-

neys’ fees.

Walker filed several post-trial motions affecting only

Anderson Electrical, all of which were denied. In addition to a

motion 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 jury

finding of sexual harassment and invasion of privacy. 742 F.Supp.

591. The denial of these motions is the Subject of this appeal.

IT. 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 disagree.

Walker’s post-trial motion for injunctive and declaratory

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

‘2 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 injunc-

tive relief in the pre-trial 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. "The

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

Memorandum Opinion of J uly 9,1990, "subtracted somewhat from

defendant’s arguments against trial by jury."

2/ 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 plainutf knowingly

and voluntarily waived [her] request for injunctive and

(continued...)

A-6

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

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

order "shall control the subsequent course of the 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, 597

F.2d 1014 (Sth Cir.1979).2/ "[W]e realize that for pretrial

procedures 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 orders."

Hodges, 597 F.2d at 1018.

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

modified 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 find at this late

date that this pre-trial order can be modified post-tr:al in order

to prevent manifest injustice.”

5 :

2/(...continued)

declaratory relief. The failure to mention such relief in

the Pretrial Order was merely an oversight." Brief for

Appellant at 11.

8/ 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).

A-7

We agree with this reasoning and find that the district

court did not abuse its discretion in following the pretrial 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 aban-

doned this claim for relief in the pre-trial conference and actively

pursued a monetary award. Walker further contends that Rule

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

54(c) prevails in the event of such a conflict.

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 money award. Rule 54(c)

simply does not sanction this type of maneuvering. We hold that

Walker is not entitled to the relief abandoned 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 harass-

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

dollar in nominal damages and that the district court erred by not

making such an award. We disagree.

ete

A-8

The district court did not instruct the jury on the possibi-

lity of awarding nominal damages in the event of a finding of

sexual harassment. Walker did not request a charge on nominal

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

a charge.

Fed.R.Civ.P. 51, which states that "[nJo 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 argues that Carey v. Piphus, 435 U.S. 247, 98 S.Ct.

1042, 55 L.Ed.2d 252 (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.

L/ 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 39-40).

A-9

Carey involved interpretation of 42 U.S.C. § 1983,8/

which provides a remedy for violations of constitutional rights by

persons acting under color of state law. Emphasizing the

absolute nature of constitutional rights and "the importance to

Organized 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 procedural due

process violation even where no actual injury had been shown.

By contrast, this case involves, not a violation of 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.?

8/ Title 42 U.S.C. § 1983 provides:

Every person who, under color of any

Statute, ordinance, regulation, custom, or usage of

any State or Territory, subjects, or causes to be

subjected, any citizen of the United States or other

person within the jurisdiction thereof to the depri-

vation 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.

2/ Only, Hicks v. Brown Group, Inc., 902 F.2d 630 (8th

Cir.1990) vacated, __—==—S»s US. __, 111 S.Ct. 1299, 113

L.Ed.2d 234 (1991), has extended Carey beyond the realm

of 42 U.S.C. § 1983 by holding that nominal damages are

mandatory upon the finding of racial discrimination in the

making and enforcement of contracts in violation of 42

U.S.C. § 1981. However, the validity of Hicks is question-

able. Hicks was vacated and remanded in light of 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

(continued...)

A-10

Because we find that the reasoning in Carey applies only

to violations of constitutional magnitude, we decline Walker’s

invitation to extend the rationale of Carey to Title VII cases and

atfirm 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-attorneys’

fees. While an award of nominal damages, an injunction or a

declaratory judgment would make the prospect of obtaining

attorneys’ fees much easier, Walker argues that even without

these badges of victory she is a "prevailing party" under 42 U.S.C.

§ 2000e-5(k)22/ and entitled to attorneys’ fees.

42 U.S.C. § 2000e-55(k) provides, in relevant party, "{i]n

any action or proceeding under this subchapter the court, in its

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

2/(...continued)

a claim for racially discriminatory termination under 42

U.S.C. § 1981 remain actionable after the Supreme

Court’s decision in Patterson v. McLean Credit Union,491

U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), thereby

making the Hicks court’s pronouncements on the issue of

nominal damages moot.

10/ 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

Title 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

Cofield v. City of Atlanta, 648 F.2d 986, 987 n. 3 (Sth Cir.

Unit B 1981) ("The language of section 1988 tracks that ot

section 2000e-5(k).").

'e a

A-11

sion or the United States, a reasonable attorney’s fee as part of

the costs." (Emphasis added). In Texas Teachers Association 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, 278-79 (1st Cir.1978)).

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 success-

fully 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 had been

violated. Hewitt, 482 U.S. at 757-59, 107 S.Ct. at 2074-75. The

11/ 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 impor-

tant side issue. See Martin v. Heckler, 773 F.2d 1145, 1149

(11th Cir.1985) (en banc).

A-12

plaintiff, a prisoner in the Pennsylvania state prison system, sued

prison officials for placing him in disciplinary confinement

without due process of law. The district court dismissed the case

in a summary judgment motion. On appeal, the Third Circuit

reversed, finding that there had, indeed, been a violation of due

process. The case was remanded to the district court with

instructions to award the plaintiff damages unless the defendants

were able to assert an immunity defense. Finding such a defense,

the district court again dismissed the case in a motion for

summary judgment and in a later ruling denied the plaintiff

attorneys’ fees. With regard to the denial of attorney’s fees, the

Third Circuit reversed. Equating its inittal finding of a due

process violation with a declaratory 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

judicial pronouncement—what makes it a proper judicial

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.

Hewitt, 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

A-13

the legal relationship between the parties by foreclosing 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

plaintiff 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 defendant

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

judgment for violations of their First Amendment rights as

prisoners in a state corrections facility. Prior to the court’s

announcement of declaratory relief, however, one of the plaintiffs

was released from prison and the other died. The Supreme

Court held that the declaratory judgment could not, under those

circumstances, affect the legal relationship between 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 judg-

ment. It will constitute relief... if, and only if, it affects the

behavior of the defendant toward the plaintiff." 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

A-14

sexual harassment. "That is not the stuff of which legal victories

are made." Hewitt, 482 U.S. at 760, 107 S.Ct. at 2675. Therefore,

in accordance with Hewitt 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

Walker’s request for attorney’s fees.

III. CONCLUSION

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

denial of Walker’s posttriai motions for declaratory and injunctive

relief, nominal damages, and attorneys’ fees.

APPENDIX B

Court of Appeals

Denial of Rehearing

January 9, 1992

B-1

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ANN WALKER,

Plaintiff-Appellant,

versus

ANDERSON ELECTRICAL CONNECTORS,

a Subsidiary of Square D Company,

On Appeal from the

United States District Court for the

Northern District of Alabama

N R REHEARING AND SUGGESTION |

H NG EN BAN

Before: FAY and COX, Circuit Judges, and MORGAN, Senior

Circuit Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active service on

the Court having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion(s) of Rehearing En

Banc are DENIED.

APPENDIX C

District Court Opinion

and

Judgment

July 9, 1990

742 F.Supp. 591

eben &

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)

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C-1

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

ANN WALKER, )

)

Plaintiff ) ;

) CIVIL ACTION NO.

VS. )

) 89-AR-1482-M

ANDERSON ELECTRICAL )

CONNECTORS, ET AL., )

)

Defendants )

FINAL JUDGMENT

Pursuant to the jury’s answers to special interrogatories

and in accordance with the memorandum opinion which accom-

panies this final judgment, it is ORDERED as follows:

l. Plaintiff, Ann Walker, shall have and recover

nothing of defendants, or either of them. All relief, whether

requested by plaintiff in the pretrial order or in plaintiff's motion

filed on June 28, 1990, after the jury verdict, is DENIED.

(A As against defendant, Local 2601, International

Associated Machinists & Aerospace Workers, the costs are taxed

against plaintiff.

a As against defendant, Anderson Electrical Connec-

tors (Square D), the parties shall bear their own respective costs.

DONE this 9th day of July, 1990.

/s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE

C-2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

ANN WALKER, )

)

Piaintiff )

) CIVIL ACTION NO.

VS. )

) 89-AR-1482-M

ANDERSON ELECTRICAL )

CONNECTORS, ET AL., )

)

Defendants )

MEMORANDUM OPINION —

Plaintiff, Ann Walker, was permitted, in response to the

jury verdict of June 19, 1990, to suggest to the court by special

motion what judgment should be entered on that verdict. The

pretrial posture of the case is set out in Walker v. Anderson

Electrical Connectors, 736 F. Supp. 253 (N.D. Ala. 19901), and

need not be repeated.

At this juncture, defendant-employer, Anderson Electrical

Connectors, is understandably no longer complaining about the

jury trial of a Title VII case (at least not in this case). This court,

nevertheless, cannot resist a short addendum to its series of

opinions holding that the parties to a Title VII case are entitled,

upon demand, to trial by jury on the money issues, including the

"back pay” issue, which many courts have described as a form of

equitable relief thereby avoiding the Seventh Amendment issue.

On April 10, 1990, a district court in Montana held: "Congress, in

enacting the ADEA, did not abrogate the states’ eleventh

amendment immunity from suit in federal court and, consequent-

ly, the eleventh amendment precludes an award of back pay

against a state thereunder." Black v. Goodman, 736 F. Supp.

C-3

1042, __ (D. Mont. 1990). It is, of course, a well understood

principle that the Eleventh Amendment provides states immunity

from claims for legal relief but not from appropriate equitable

relief. By finding the State of Montana immune from a claim for

"back pay," the court was necessarily finding that "pack pay"

constitutes a legal remedy. It would be an impermissible anomaly

for "back pay" to be a legal remedy under the ADEA but an

equitable remedy under Title VII. If "back pay" is a legal

remedy, the Seventh Amendment clearly controls who shall make

the factual determinations.

After this case was submitted to the jury which Walker had

demanded over defendants’ strenuous objection, the jury an-

swered special interrogatories as follows:

i Did defendant, Anderson Electrical

Conne ors (Square D), commit any act or acts of

sexual harassment against plaintiff, Ann Walker, in

violation of Title VII of the Civil Rights Act of

1964 at any time less than 180 days before plaintiff

filed her complaint with the Equal Employment

Opportunity Commission on February 28, 1989?

YES _X NO

- ONLY if the jury has answered

"YES" to Question No. I, did the said sexual

harassment proximately cause plaintiff to lose any

time from work?

YES NO _X

aS ONLY if the jury has answered

"YES" to Question No. 1 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 Electric Connectors’ said

conduct violating the Civil Rights Act.

$

a

C-4

4, Did defendant, Local 2601, Interna-

tional Association of Machinists & Aerospace

Workers, commit any act or acts of sexual harass-

ment against plaintiff, Ann Walker, in violation of

Title VII of the Civil Rights Act of 1964 at any

time less than 180 days before plaintiff filed her

complaint with the Equal Employment Opportunity

Commission on February 28, 1989?

YES NO _X

a ONLY if the jury has answered

"YES" to Question No. 4, did the said sexual

harassment proximately cause plaintiff to lose any

time from work?

YES NO

6. ONLY if the jury has answered

"YES" to Question No. 4 and "YES" to Question

No. 5, 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, Local 2601, International Association of

Machinists & Aerospace Workers’, said conduct

violating the Civil Rights Act.

$

7. Did defendant, Anderson Electric

Connectors (Square D), invade the privacy of

plainutf, Ann Walker?

YES _X NO

8. ONLY if the jury has answered

"YES" to Question No. 7, did the said invasion of

plaintiffs privacy proximately cause plaintiff any

injury?

YES NO _xX

C-5

9. ONLY if the jury has answered

"YES" to Question No. 7 and "YES" to Question

No. 8, state the amount of compensatory damages,

if any, which plaintiff has proven by a preponder-

ance of the evidence that she sustained as a proxi-

mate result of said defendant’s invasion of plain-

tiffs privacy (giving said defendant credit for any

lost wages which may have been awarded by the

jury in answer to Question No. 3, that is, if the jury

finds the said lost wages to have been proximately

caused both by invasion of privacy and by sexual

harassment).

$

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 Electrical Connectors consciously or

deliberately engaged in oppression, fraud, wanton-

ness, 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 invasions of privacy.

$

Neither Walker’s complaint nor her statement-of-position

in the pretrial order indicated any intention by her to seek any

form of relief except monetary damages and attorney’s fees.

There was no request for reinstatement or for any kind of

declaratory, injunctive or other equitable relief. This fact(made

it easier than it otherwise would have been for this court to grant

plaintiff's demand for a jury trial. Certainly, the absence of any

prayer for equitable relief subtracted somewhat from defendants’

arguments against trial by jury.

C-6

The court did not give any instruction to the jury on

"nominal damages." There was no such charge requested by

Walker and no exception taken to the court’s failure to charge on

“nominal damages" as an alternative form of compensation.

In her post-verdict motion, Walker asks this court to award

her nominal damages, to grant her declaratory and injunctive

relief, including a declaration that she is the prevailing party, and

to grant her attorney’s fees under 42 U.S.C. § 1988.

Under any view of the jury responses, it is obvious that

Walker did not prevail against the union defendant, Local 2601,

International Association of Machinists & Aerospace Workers.

Therefore, Local 2601 is, without question, entitled to a final

judgment in its favor.

As to defendant-employer, Anderson Electrical, the jury

found that it had committed one or mors acts of sexual harass-

ment against Walker in violation of Title VII of the Civil Rights

Act of 1964, but the jury also found that Walker suffered no lost

time from work, and thus no monetary loss as a proximate result

of the said harassment. With respect to Walker’s pendent state

claim for invasion of privacy, the jury similarly found that

Anderson Electrical’s invasion of Walker’s privacy caused Walker

no injury.

It is tempting to speculate about the jury’s rationale. From

the evidence, it theoretically could be that the jury found only

one act of sexual harassment by the former Anderson Electrical

supervisor, who, incidentally, was a prominent witness for Walker.

This could logically explain the finding of harassment without

injury. It is also theoretically possible that the jury found that

Walker provoked undue male familiarity and thus proximately

caused her own injury, if any. It alternatively could be that the

jury found that Walker’s psychological condition and resulting

hospitalization was feigned, or was the product of drug abuse, or

was the product of childhood psychological trauma and was not

the proximate consequence of any harassment in the work place.

These are, of course, mere speculations, which, though perhaps

justified by the evidence, cannot be used as an excuse for

C7

substituting the court’s judgment for that of the jury. The entire

purpose of the Seventh Amendment, a purpose which this court

subscribes to as much as the framers subscribed to it, if applied

in Title VII cases as this court has done, and believes must be

done, would be lost if the court allowed itself to second-guess the

jury. This court does not know, and will not state, what it would

have done had this been a bench trial and had it been called

upon to evaluate the various witnesses for their credibility. With

the jury sitting in the box as mandated by the Seventh Amend-

ment, this court deliberately left the weighing of the evidence to

the jurors.

Walker argues that this court’s discretionary powers under

Title VI include the right to develop appropriate relief beyond

what the jury gave. Walker argues that the court is required

under these precise circumstances to award at least nominal

damages in recognition of Walker’s success on the liability

question. Walker’s argument is flawed in several respects, and all

of the flaws are occasioned by two facts: (1) that this was a jury

trial, and (2) that Walker never requested nominal damages as an

alternative form of relief. By failing to take exception to the jury

charge which did not mention nominal damages, Walker gave up

that option. Also, insofar as Walker's request for nominal

damages is concerned, even nominal damages, if they are to be

awarded, must be the proximate consequence of the wrongful act

complained of, and the jury in this case rejected any such causal

connection. It was undisputed that Walker has been off work and

lost wages. This necessarily means that the jury found against her

on the issue of proximate cause. Furthermore, Walker cites no

authority for the right of a court to award nominal damages after

a jury has found no damage whatsoever. A helpful and very

recent indication that Walker’s would-be proposition is erroneous

is contained in Hattaway v. McMillian, __ F.2d ___ (11th Cir.

1990), decided on June 25, 1990. There the Eleventh Circuit

said:

[W]e note that a long line of consistent decisions of

the United States Supreme Court forbid the plain-

tiff from accepting a remittur--even under protest--

Ce

ij

C-8

and then appealing the order granting the remittur.

See Donovan v. Penn Shipping Co., 429 U.S. 648,

649-50, 97 S.Ct. 835, 836-37, 51 L.Ed.2d 112 (19771

(per curiam) (noting cases). This principle applies

as a matter of federal procedure in "either a state

or federal cause of action." Id. at 650, 97 S.Ct. at

837. Finally, we note that there are no federal

cases applying these principles to an additur order.

Of course, the paucity of federal precedent is not

surprising given the fact that the order of an additur

by a federal court violates the seventh amendment

right to a jury trial in civil cases. Dimick v. Schiedt,

293 U.S. 474, 486-88, 55 S.Ct. 296, 79 L.Ed. 603

(1935); Hawkes v. Ayers, 537 F.2d 836, 837 (Sth Cir.

1976).

Slip opinion. p. 3290 (footnote omitted) (emphasis supplied).

The Hattawuy court agrees with this court that a jury’s verdict

precludes the possibility of adding any money to the verdict,

whether a million dollars or a dollar.

Rule 16(e), F.R.Civ.P., forever locked the door against

Walker as to relief beyond the relief she claimed in the pretrial

order. Walker chose her strategy, forcing Anderson Electric to

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

at this late date that this pretrial order can be modified post-trial

in order to "prevent manifest injustice." See Rule 16(e). It would

be manifestly unjust for the court to grant relief which Walker did

not seek and which the jury did not give.

Walker, even now, conspicuously does not ask for the

equitable remedies of restitution or so-called "front pay." If this

is not because she did not ask for any such relief in the pre-trial

order, it is because Anderson Electrical is prepared to take her

back as soon as she is released by her doctor for work. She never

claimed that she was constructively discharged.

Assuming arguendo that this court could assume the power

to enjoin Anderson Electrical not to commit future acts of sexual

harassment against females, this court would decline to do so,

C-9

believing: (1) that in an individual’s case (as contrasted with a

class action), any injunctive relief should be limited to the

individual plaintiff; (2) that Anderson Electrical has already rid

itself of the highest profile sexual harasser, Walker’s own witness;

(3) that Anderson Electrical’s written policy against sexual

harassment contains basically the same provisions which an

injunction would contain; (4) that Title VII itself, bolstered by the

jury finding in this case, provides an adequate warning to

Anderson Electrical and a sufficient guarantee against future

sexual harassment; and (5) that the future monitoring of an

injunction in a non-class-action case would be impossible at worst

and unduly burdensome at best.

This court is hesitant to mention an issue not raised by

either party. The court mentions it, nevertheless, for what effect

it may have. During the trial, it became apparent for the first

time, at least to the court, that Walker was adjudicated bankrupt

under Chapter 7 after any claim or cause of action presented by

Walker in this case had accrued. Her claims against Anderson

Electrical and Local 2601 were not listed on her bankruptcy

schedules. They should have been so listed, because all of her

claims for money or property became the property of her

bankruptcy estate. After bankruptcy, she personally would have

had no standing to pursue these particular claims, or any other

claim accruing pre-bankruptcy. See Harms v. St. Louis University,

53 F.E.P.C. 643, 58 U.S.L.W. 2634 (E.D. Mo. 1990), and cases

cited therein. In the instant case, the fact that Walker has been

discharged in bankruptcy and that her trustee-in-bankruptcy, on

behalf of her creditors, abandoned all unmarshalled assets, may

repair the jurisdictional damage. If Walker’s trustee OF a

sophisticated creditor had known of her great expectations from

this case, as testified to by some of the witnesses, they would have

been ecstatic. As of now, any complaint by Walker's trustee or

by a creditor would be quixotic.

Lastly, the court notes that Walker does not ask for a new

trial. By noting this fact, the court does not mean to suggest that

4 new trial would be granted if Walker should now invoke Rule

59, F.R.Civ.P.

C-10

A separate final judgment will be entered.

DONE this 9th day of July, 1990.

/s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE

APPENDIX D

District Court Opinion

August 6, 1990

and

Addendum

August 10, 1990

742 F.Supp. 596

EE

74

D-|

APPENDIX D

. IN THE UNITED STATES@BISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISIO°

ANN WALKER,

Plaintiff

CIVIL ACTION NO.

)

VS. )

89-AR-1482-M

ANDERSON ELECTRICAL )

CONNECTORS, ET AL., )

)

)

Defendants

MEMORANDUM OPINION

Plaintiff, Ann Walker, has moved for reconsideration and

alteration of the final judgment entered against her on July 9,

1990. She has alternatively moved for a new trial limited to the

question of the amount of damages to be assessed against

defendant, Anderson Electrical Connectors. Neither motion

attacks the judgment entered on the verdict rendered in favor of

the other defendant, Local 2601, International Association of

Machinists and Aerospace Workers.

Walker repeats her earlier post-verdict insistence that she

be awarded nominal damages by the court. She also argues that

her action achieved significant changes in her employer’s policies

regarding the work environment, justifying her being deemed the

prevailing party for purposes of 42 U.S.C. § 1988. After rethink-

ing these questions, the court finds no reason to alter the

conclusions it reached on July 9, 1990.

D-2

[. Nominal Damages Are Not Available to Vindicate a Jury-

Tried Claim for Sexual Harassment.

For the imposition of nominal damages, plaintiff relies

upon Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042 (1978), which

stands for the proposition that the violation of certain absolute

rights may entitle a plaintiff to nominal damages even without

proof of actual damage. In Carey, the Supreme Court found that

"procedural due process" was such an absolute right. The first

noticeable difference between Carey and Walker’s case is that

"due process" and "sexual harassment" are like apples and

oranges. It is hard to argue that freedom from sexual harassment

is an absolute constitutional right. Another very significant

difference between Carey and Walker’s case is that Walker was

tried to a jury empaneled on plaintiffs demand. That jury

expressly found that defendant’s conduct did not proximately

cause plaintiff any damage. In other words, Walker attempted to

prove actual damage as a proximate result of sexual harassment

and failed. In Carey no evidence of damage was even offered by

the plaintiff, who instead chose to rely upon the pure principle of

vindication for which nominal damages might be awarded. In

Carey, the Supreme Court quoted the trial court as follows:

"Plaintiffs put no evidence in the record to

qualify their damages, and the record is completely

devoid of any evidence which could even form the

basis of a speculative inference measuring the

extent of their injuries. Plaintiffs’ claims for dam-

ages therefore fail for complete lack of proof."

98 S.Ct. at 1046.

The failure of the plaintiff in Carey to prove actual damages was

thus a deliberate choice, whereas Walker opted for nominal

damages only after having tried and failed to prove actual

damages to the jury. Lastly, the Supreme Court was careful in

Carey to recognize that the award of nominal damages for a

denial of "due process" without any proof of actual damage was

a Narrow exception to the usual rule. The Court recognized such

scence |

D-3

an exception only where there was no "common law analogue."

In Walker’s case, Walker herself sought a state remedy, or

"analogue," when she claimed an invasion of her privacy, an

Alabama tort./ If this court cannot award Walker nominal

damages for an of invasion of privacy, Walker apparently

concedes, the court cannot award Walker nominal damages for

a Title VII violation if the lesson of Carey is applied.

II. New Trial on Issue of Damages Alone Is Prohibited by

Seventh Amendment.

When a jury has fixed the amount of damages, whether at

zero or at a million dollars, the same Seventh Amendment upon

which Walker relied for her jury demand precludes the court

from imposing an additur. In Dimick v. Schiedt, 293 U.S. 474, 55

S.Ct. 296 (1935), the Supreme Court said:

The controlling distinction * *tween the power of

the court and that of the jury is wat the former is the

power to determine the law and the latter to determine

the facts. In dealing with questions like the one now

under consideration, that distinction must be borne

steadily in mind. Where the verdict returned by a jury is

palpably and grossly inadequate or excessive, it should not

be permitted to stand; but, in that event, both parties

remain entitled, as they were entitled in the first instance,

to have a jury properly determine the question of liability

and the extent of the injury by an assessment of damages.

Both are questions of fact. Where the verdict is excessive,

the practice of substituting a remission of the excess for a

new trial is not without plausible support in the view that

what remains is included in the verdict along with the

unlawful excess--in that sense that it has been found by the

1/ The jury, consistent with its response to Walker’s

Title VII claim, found Anderson Electrical technically

guilty but also found that Walker had not sustained any

damage as a proximate consequence.

D-4

jury--and that the remittitur has the effect of merely

lopping off an excrescence. But where the verdict is too

small, an increase by the court is a bald addition of

something which in no sense can be said to be included in

the verdict. When, therefore, the trial court here found

that the damages awarded by the jury were so inadequate

as to entitle plaintiff to a new trial, how can it be held,

with any semblance of reason, that that court, with the

consent of the defendant only, may, by assessing an

additional amount of damages, bring the constitutional

right of the plaintiff to a jury trial to an end in respect of

a matter of fact which no jury has ever passed upon either

explicitly or by implication? To so hold is obviously to

compel the plaintiff to forego his constitutional right to

the verdict of a jury and accept "an assessment partly

made by a jury which has acted improperly, and partly by

a tribunal which has no power to assess."

It is said that the common law is susceptible of

growth and adaptation to new circumstances and situa-

tions, and that the courts have power to declare and

effectuate what is the present rule in respect of a given

subject without regard to the old rule; and some attempt

is made to apply that principle here. The common law is

not immutable, but flexible, and upon its own principles

adapts itself to varying conditions. Funk v. United States,

290 U.S. 371. But here, we are dealing with a constitu-

tional provision which has in effect adopted the rules of

the common law, in respect of trial by jury, as these rules

existed in 1791. To effectuate any change in these rules

is not to deal with the common law, common law, but to

alter the Constitution. The distinction is fundamental, and

has been clearly pointed out by Judge Cooley in 1 Const.

Limitations, 8th ed., 124.

It is worthy of note that while for more than a

century the federal courts have followed the approved

practice of conditioning the allowance of a new trial on

the consent of plaintiff to remit excessive damages, no

Bie

D-5

federal court, so far as we can discover, has ever under-

taken similarly to increase the damages, although there are

numerous cases where motions for new trial have been

made and granted on the ground that the verdict was

inadequate.

293 U.S. at pp. 486-487 (emphasis supplied).

While Dimick proves that this court was correct in granting

plaintiff a jury trial, its help to plaintiff comes to an end at that

point. Why? Because Walker does not ask for a complete new

trial. She only asks alternatively for a new trial on the issue of

damages. Even if she had asked for a new trial on all issues, the

court would be unable to find that the damage award of zero was

so inadequate as to call for a complete new trial, because this

jury found that there was no injury whatsoever traceable to any

wrong committed by Anderson Electrical. The jury quite clearly

found against Walker on the issue of proximate causation. This

is dissimilar to a hypothetical case in which a jury finds miscon-

duct by a defendant proximately causing plaintiff indisputably

serious injury, including $10,000.00 in medical expenses, but

renders a $100.00 verdict. If such were the case here, a complete

new trial might be in order, but additur would not be proper

because, as Dimick says, additur would violate the Seventh

Amendment.

Although not cited by Walker, this court has found and

has considered Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.

1990). Even if the Eighth Circuit is correct in Hicks, its opinion

there is easily distinguishable. There, the district court added

$1.00 in nominal damages only after a jury had awarded

$10,000.00 in punitive damages without awarding any actual

damages. The jury had been instructed on punitive damages but,

for aught appearing, had not been instructed on the necessity of

awarding at least nominal damages as a prerequisite to punitive

damages. In Walker’s case, there was no possibility of punitive

damages being awarded against Anderson Electrical under her

Title VII claim. More importantly, this court seriously doubts the

correctness of Hicks, in which there was a strong dissent. The

D-6

Eighth Circuit seems to want to overrule the Supreme Court’s

Patterson v. McLean Credit Union, _ U.S. ____, 109 S.Ct. 2363

(1989). This court agrees with the dissent in Hicks that Patterson

precluded that particular action brought under 42 U.S.C. § 1981.

If this court and the dissenter in Hicks are correct, the pro-

nouncements by the Eighth Circuit on an additur of nominal

damages becomes moot. Other courts promptly declined to

follow Hicks. See Kozam v. Emerson Elec. Co., ____ F. Supp.

___, 1990 WL 75655 (N.D. Miss. 1990); McKnight v. Gen. Motors

Corp., __ F.2d ___, 1990 WL 89739 (7th Cir. 1990).

III. Walker is Not a Prevailing Party Under 42 U.S.C. § 1988.

Walker is asking this court to reach conclusions beyond

the issues presented and not justified by the evidence. Walker

sought no injunctive relief, and there was no credible evidence

that any change in procedure or rule by Anderson Electrical was

the proximate result of Walker having brought suit.” The issue of

entitlement under 42 U.S.C. § 1988 has been fully addressed in

the opinion of July 9, 1990.

CONCLUSION

For the reasons stated above, as well as for the reasons

expressed in the memorandum opinion of July 9, 1990, plaintiff's

post-judgment motions will be denied.

DONE this 6th day of August, 1990.

/s/ William M, Acker, Jr.

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE

D-7

IN ‘THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

ANN WALKER, )

)

Plaintiff )

) CIVIL ACTION NO.

VS. )

) 89-AR-1482-M

ANDERSON ELECTRICAL )

CONNECTORS, ET AL., )

)

Defendants )

ADDENDUM TO MEMORANDUM OPINION

After the memorandum opinion of August 6, 1990, was

entered, it was brought to the court’s attention that in refusing to

award nominal damages, the court never mentioned the fact that

the only relief ever sought by Ann Walker was lost wages.

Special interrogatory No. 2 addressed to the jury asked "did the

said sexual harassment [found in response to interrogatory No. 1]

proximately cause plaintiff to lose any time from work?" Walker

did not object to the form of this question. Her failure to object

is understandable, because her evidence was designed to persuade

the jury that her absence from the work place was occasioned by

the sexual harassment which had caused her to have to undergo

treatment for depression. The jury answered "No."

There was a super-abundance of evidence upon which the

jury could find, as it did, the Walker’s departure on sick leave was

unrelated to an sexual harassment which may have occurred in

the work place. If the court should now give Walker a dollar, the

dollar would logically have to represent "lost wages." Such an

additur would contradict the express jury finding that Walker lost

no wages as a consequence of any employer misconduct. Such an

D-8

additur would be an obvious and egregious invasion of the

province of the jury, something which this court, believing as it

does in the Seventh Amendment, cannot do.

DONE this 10th day of August, 1990.

/s/ William M. Acker, Jr.

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE

APPENDIX E

District Court Order

August 16, 1990

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E-1

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

ANN WALKER, )

)

Plaintiff )

) CIVIL ACTION NO.

VS. )

) 89-AR-1482-M

ANDERSON ELECTRICAL )

CONNECTORS, ET AL., )

)

Defendants )

ORDER

Plaintiff, Ann Walker, has filed a motion for attorney’s

fees and expenses pursuant to Local Rule 11. For the reasons

stated in the memorandum opinions of July 9, 1990, August 6,

1990, and August 10, 1990, and for the further reason that the

motion is not accompanied with any proof, the motion is

DENIED.

DONE this 16th day of August, 1990.

Willi

WILLIAM M. ACKER, JR.

UNITED STATES DISTRICT JUDGE