Green v. Administrators of the Tulane Educational Fund

Citations: 284 F.3d 642; 58 Fed. R. Serv. 1451; 52 Fed. R. Serv. 3d 487; 2002 U.S. App. LEXIS 4197; 82 Empl. Prac. Dec. (CCH) 41,081; 89 Fair Empl. Prac. Cas. (BNA) 587; 2002 WL 314011Docket: 00-30530, 00-31118

Court: Court of Appeals for the Fifth Circuit; March 15, 2002; Federal Appellate Court

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Cathryn Green filed a lawsuit against Dr. Donald Richardson, her former supervisor, and the Tulane Educational Fund, alleging sexual harassment and retaliation under Title VII and Louisiana law following the termination of their consensual relationship. Green sought various damages, including compensatory, back pay, front pay, and punitive damages. The district court granted partial summary judgment dismissing all claims against Richardson and some claims against Tulane, ultimately ruling that punitive damages were not warranted. A jury awarded Green $300,000 in compensatory damages, along with back pay of $124,673 and front pay of $4,287. Tulane’s post-judgment motions for a new trial and judgment as a matter of law were denied. The court later awarded $302,285 in attorneys' fees and additional costs totaling $29,027.29. In the appeal, Green contested the dismissal of her punitive damages claim, while Tulane argued that the harassment was not severe enough to meet Title VII standards, that it stemmed from personal animosity rather than sex, and that there was no causal link between her complaints and the alleged retaliatory actions. Tulane also claimed that the court abused its discretion regarding the damages awarded and that there were errors in jury instructions and the admission of hearsay evidence. The appellate court affirmed the district court's judgment in all respects. Green had a long employment history at Tulane, with Richardson pursuing her romantically for years before their relationship began in 1992 and ending in 1993 amid personal complications for Green, including health issues following a hysterectomy.

In January 1994, Green began working on an as-tolerated basis and alleges that Richardson started sexually harassing her, including ordering the breakage of desk locks and searching her drawers. Green claims that Frentz wanted her terminated and that Richardson was directed by Frentz to undermine her job performance. After taking time off to recuperate, Green received a certified letter from Richardson demanding her return to work or a doctor’s note, which she could not obtain in time and thus returned on January 18th. On that day, she reported Richardson’s behavior to Frank Currie, the head of Tulane’s personnel department, and responded in writing to Richardson’s letter, copying Currie.

On January 20th, Richardson submitted a Staff Counseling Report (SCR) that misclassified Green’s position and reallocated her duties, accusing her of being verbally abusive. Green contacted Currie again, resulting in her placement on Paid Administrative Leave (PAL) until January 24th, with Currie later stating the SCR would be retracted. Despite this, Green asserts her duties were never restored. On February 8th, she overheard a meeting where Richardson and Frentz discussed further stripping her responsibilities. Green met with Mary Smith, Tulane’s EEO officer, and filed a formal complaint on February 16th. She faced continued alterations to her job duties and was placed on PAL again.

After exhausting her available PAL, Currie instructed her to return to work on April 11, 1994. On that date, Green expressed to Currie, based on her psychotherapist Dr. George N. Guild’s advice, that she could no longer work under Richardson due to severe mental health deterioration, including suicidal ideation and PTSD symptoms linked to her past trauma. Green subsequently applied for long-term disability. While on PAL, she received her full salary until transitioning to disability payments on July 1, 1994. Tulane claimed it sought suitable transfer options for Green during this period, but she interviewed for only one position without success. Following Guild’s guidance, Green later pursued nursing school and began working as a nurse full-time in 1998.

Green argues that Tulane's Notice of Appeal, filed on April 28, 2000, is untimely since the judgment was entered on December 8, 1999, exceeding the thirty-day limit under FED. R. APP. P. 4(a)(1)(A). Tulane counters that its Rule 50(b) motion for judgment as a matter of law was delivered to the district court clerk on December 22, 1999, within the ten-day period allowed, and that this motion was disposed of on March 30, 2000, making the appeal notice timely. The appellate court reviews de novo the district court’s decisions on motions for judgment as a matter of law, emphasizing that judgment is appropriate only when no reasonable jury could find for the party opposing the motion. The jury must weigh evidence and draw inferences, with the court refraining from making credibility determinations. 

Regarding punitive damages, Green claims the district court erred in granting Tulane's motion on this claim. Under Title VII, an employer is liable for punitive damages if a managerial agent acts with malice or reckless indifference while within the scope of employment. The district court recognized the agent, Richardson, acted within the scope of employment but did not evaluate whether his actions demonstrated malice or recklessness. Instead, it concluded no reasonable juror could find Tulane failed to act in good faith, aligning with the court's assessment of compliance with Title VII.

In Deffenbaugh-Williams v. Wal-Mart Stores, Inc., Wal-Mart did not provide sufficient evidence of good faith in response to a complaint, relying solely on its claim of encouraging employees to escalate grievances. The court found that Wal-Mart's lack of a tangible response to the complaint did not support its assertion of good faith, leading to a conclusion that reasonable jurors could determine otherwise. Similarly, in Hertberg v. SRAM Corp., the court allowed a jury to conclude that an employer did not act in good faith when it dismissed a sexual harassment complaint by labeling the complainant as "too emotional." In Cadena v. Pacesetter Corp., the court refused to grant judgment on good faith grounds due to the employer's inaction against sexual harassment.

In contrast, Tulane University demonstrated efforts toward good faith, despite failing to adequately reprimand an employee or restore another's duties. Tulane had a sexual harassment policy in its Staff Handbook and took steps such as placing the affected employee on a Performance Action Plan, conducting meetings, and addressing inappropriate actions of another employee. These efforts justified the district court’s ruling of good faith.

Tulane contended that Green did not show a tangible employment action occurred, arguing that such actions typically cause direct economic harm, and thus it was entitled to an affirmative defense per the precedents set in Faragher v. City of Boca Raton and Burlington Indus., Inc. v. Ellerth. However, while economic harm is common, it is not a prerequisite for defining a tangible employment action. The court referenced Kocsis v. Multi-Care Mgmt., Inc. to support that a demotion without a change in pay or benefits could still qualify as a tangible employment action. Consequently, Green's demotion was sufficient for this classification, negating Tulane's entitlement to the Faragher/Ellerth defense, which requires the employer to demonstrate reasonable care in preventing harassment and that the employee took no advantage of corrective opportunities.

Tulane's claim for the Faragher/Ellerth defense is rejected because, despite the case being framed as a hostile work environment, a tangible employment action was proven. According to Casiano v. AT&T Corp., a case typically qualifies for the Faragher/Ellerth defense only if no tangible employment action is taken. Here, since a tangible employment action occurred, the defense is unavailable. The Supreme Court in Ellerth clarified that when a tangible employment action is established, it indicates a change in employment terms, ensuring the injury resulted from an agency relationship, thus making the employer liable under Title VII without any affirmative defenses.

Tulane also challenges the sufficiency of evidence for Green's hostile work environment claim, which requires proof that: (1) the plaintiff is in a protected class, (2) unwelcome sexual harassment occurred, (3) the harassment was sex-based, (4) it affected employment terms or conditions, and (5) the employer was aware and did not act. Tulane argues that the harassment by Richardson was neither severe nor pervasive and not sex-based. However, a hostile work environment claim necessitates conduct that is both subjectively and objectively offensive as per Title VII standards. Factors considered include the frequency and severity of conduct, its physical threatening or humiliating nature, and its effect on work performance. Evidence suggests Richardson's actions were sufficiently severe to meet these criteria, impacting Green's work performance and causing psychological distress, despite Dr. Guild's difficulty in pinpointing the exact cause of her psychological issues.

A jury could reasonably determine that Richardson's behavior, given his awareness of Green's vulnerable psychological state, was severe and pervasive, contributing to her emotional distress. Evidence indicated that Green had to leave a job she enjoyed to safeguard her mental health, supporting the jury's conclusion of severe conduct. Tulane argued that Green’s harassment was not sex-based, citing *Succar v. Dade County Board*, which held that harassment stemming from personal animosity after a failed relationship does not constitute sexual harassment. Tulane claimed Richardson did not pressure Green to resume their relationship and that the harassment lacked sexual nature, attributing it to personal animosity instead. However, the district court countered this by referencing *Oncale v. Sundowner Offshore Services*, which affirmed that Title VII encompasses all forms of sexual harassment affecting employment conditions. The court found it critical to assess whether Green faced unfavorable employment conditions not experienced by the opposite sex. Testimony indicated Richardson harbored intentions of marrying Green, while she rejected a casual relationship, and his harassment began only after their relationship ended. This suggested his actions were a response to her refusal, thus supporting the jury's finding of sexual harassment. Additionally, Tulane contested the denial of its motion for judgment on Green's Title VII retaliation claim, which required her to demonstrate participation in protected activity, suffering an adverse employment action, and a causal link between the two.

Protected activity under Title VII includes actions such as making charges, testifying, assisting, or participating in investigations related to unlawful employment practices. Adverse employment actions are defined as ultimate employment decisions, including hiring, promotion, and termination. To establish causation, an employee must demonstrate that the adverse action would not have occurred "but for" the protected activity. Tulane argues that Green did not engage in protected activity, asserting her complaints were about retaliation rather than sex discrimination. This argument is rejected; Title VII does not require proof that the conduct opposed was an actual violation, only that a complaint was made based on a reasonable belief of discrimination.

Tulane contends that certain actions, like changing locks and clarifying job duties, do not constitute adverse employment actions. While this is correct, evidence indicates Green was demoted from Office Manager to Administrative Assistant IV and effectively lost her job duties, which qualifies as an adverse employment action. Tulane also claims no causal connection exists between Green's complaints and her demotion, noting most actions occurred prior to her formal complaint on February 16. However, it is found that Green had voiced complaints before this date, and Richardson's actions after learning of these complaints support a causal link.

Lastly, Tulane challenges the court's award of front pay, claiming it constituted an abuse of discretion. Front pay serves to compensate for lost future wages and benefits when reinstatement is not feasible due to a hostile employer-employee relationship. The district court awarded Green $4,287 in front pay, considering her new job with a higher salary and the discord between the parties. The court's decision aligns with established legal standards, and thus, it did not abuse its discretion in awarding front pay.

Tulane argues that the district court abused its discretion in awarding back pay to Green, claiming she failed to mitigate her damages as required under Title VII. Tulane contends that Green did not seek alternative employment after her job remained available and that her decision to attend nursing school represented a voluntary exit from the job market. Citing Floca and the Tenth Circuit's Taylor case, Tulane asserts that attending school while forgoing immediate earnings amounts to receiving a double benefit. Despite this, the district court found that the jury was instructed on the duty to mitigate and determined Green was constructively discharged, awarding back pay based on her mental state and subsequent educational achievements leading to a higher-paying job. Consequently, the district court is deemed not to have abused its discretion.

Furthermore, Tulane claims multiple trial errors warranting a new trial, including the district court's failure to provide jury instructions on sex-neutral hostile conduct, the admission of prejudicial hearsay evidence, and the inclusion of other sexual harassment complaints against Richardson. Tulane argues that the lack of guidance on sex-neutral conduct tainted the jury's verdict. The standard for challenging jury instructions requires demonstrating substantial doubt regarding the jury's guidance, but the court found that the instructions adequately addressed the harassment as gender-based, thus affirming no abuse of discretion. Additionally, Tulane contests the admission of hearsay testimony regarding Richardson's alleged ultimatum but acknowledges that evidentiary rulings are reviewed under an abuse of discretion standard.

An abuse of discretion in evidentiary rulings is assessed under the harmless error doctrine, affirming rulings unless a substantial right is impacted. In the case involving Nero’s testimony, it was determined that her statement regarding Richardson did not constitute double hearsay, as she did not recount Frentz’s statement, but merely indicated Richardson’s remark about needing to "get rid of Green." This was permitted as a statement from a party opponent under FED. R. EVID. 801(d)(2), thus no abuse of discretion was found by the district court.

Tulane's argument that Nero's testimony about three other sexual harassment complaints against Richardson was inadmissible hearsay was also rejected. The district court correctly admitted this testimony not for its truth but to establish that Tulane was aware of Richardson's potential misconduct, leading to no abuse of discretion.

Regarding the jury's awarded damages, Tulane claimed they were excessive and driven by passion, seeking a remittitur and an offset for Green's disability benefits and workers’ compensation settlement. The review of the jury award involves examining the district court’s denial of a new trial or remittitur, under an abuse of discretion standard. The jury's award enjoys significant deference unless it is markedly disproportionate to the injury. The district court found the verdict reasonable and without evidence of jury bias or prejudice. Additionally, disability insurance benefits obtained by Green were deemed a collateral source and not subject to deduction from her recovery, as they were purchased with her own funds. The workers’ compensation Receipt and Release was not presented as evidence, thus could not be considered in reducing the damages awarded.

Tulane argues that the award of attorneys’ fees is flawed for several reasons. Firstly, it claims the magistrate judge failed to apply an across-the-board percentage cut due to Green's counsel's lack of billing judgment. Secondly, Tulane contends that Green was improperly compensated for work related to her workers’ compensation and state law suits. Thirdly, it challenges the appropriateness of the hourly rates set by the judge. Lastly, Tulane points out errors in the judge's evaluation of whether a lodestar deduction was justified. 

To determine attorneys’ fees, a court calculates a lodestar fee by multiplying the hours reasonably spent on litigation by a reasonable hourly rate, followed by an assessment of whether to adjust the lodestar based on factors established in *Johnson v. Ga. Highway Express, Inc.*, which includes considerations such as the complexity of the issues, the skill required, customary fees, and results obtained. Notably, factors already considered in the lodestar calculation should not be reassessed when determining adjustments.

The review process distinguishes between the lodestar amount, which is scrutinized for clear error, and the application of the Johnson factors, which is reviewed for abuse of discretion. While the district court's analysis of the Johnson factors does not require exhaustive detail, it must clearly articulate and apply these criteria. Tulane further argues that Green has not adequately demonstrated the exercise of billing judgment, asserting that her claim of having written off hours before submitting bills is disingenuous. It also believes the district court wrongfully merged reductions for non-compensable time with those for inadequate billing judgment. The proper demonstration of billing judgment involves attorneys writing off unproductive or excessive hours, and failing to do so typically results in a percentage reduction of awarded hours. In this case, the magistrate judge conducted a line-by-line analysis of the submitted bills.

The magistrate judge conducted a thorough review of billing records rather than applying a simple percentage reduction to address billing judgment concerns, leading the court to adopt the magistrate's recommendations without error. Tulane contested the awarding of fees related to depositions in the workers’ compensation suit, arguing these were inappropriate; however, the magistrate deemed these fees reasonable due to their relevance to the Title VII case, particularly highlighting the importance of attending crucial witness depositions. Furthermore, the magistrate excluded redundant work on state claims post-federal filing, undermining Tulane's argument.

Tulane also challenged the hourly rates of $175 for Ms. Burnthorn and $110 for Mr. Johnson, asserting they exceeded prevailing market rates. The court found no clear error in these determinations. Additionally, Tulane claimed the district court improperly revisited factors related to the case's difficulty and Tulane's resources when deciding on the lodestar reduction, but the court's consideration of these factors was justified in evaluating the appropriateness of the attorneys’ fee award. 

Tulane’s assertion that the eighth Johnson factor warranted a lodestar reduction due to Green's partial success was rejected; Green achieved significant success, including receiving the statutory cap for compensatory damages. Lastly, Tulane argued that the twelfth Johnson factor supported a reduction based on similar cases, noting the unprecedented nature of the fee award. However, the district court found that other relevant factors within the Johnson framework justified maintaining the lodestar amount, a conclusion with which the appellate court concurred.

Sexual harassment lawsuits present significant challenges for plaintiffs, as highlighted by Tulane's vigorous defense in this case. Tulane argued that the damages awarded to Green should be compared to the attorneys’ fees she requested, which totaled $444,000, exceeding her damages award. However, the district court reduced Green's fee request to $302,285. The court clarified that the amount of damages is just one factor in determining attorneys’ fees, and fees do not need to match the damages awarded. Instead, prevailing counsel should be compensated for all reasonable time spent on the case.

Tulane further claimed that Green failed to follow proper procedures for requesting costs, asserting that her bill of costs was filed late, beyond the thirty days permitted by local rules. It argued that the district court improperly granted an extension without a motion from Green and that she did not demonstrate excusable neglect for her late filing. However, the district court found conflicting orders contributed to the delay. It recognized that while Green did not file her costs request within the stipulated time, the court has discretion to consider late motions if the purposes of the rule are met. The court determined that Tulane had sufficient notice of Green's intent to seek fees.

Ultimately, the court affirmed its judgment on several points, including Green's claims for punitive damages, sexual harassment, retaliation, evidentiary rulings, and the award of attorneys’ fees and costs.