A regular theme on this blog is for lawyers to keep an eye on remedies at all times. A pair of non-precedential Eleventh Circuit cases arising from the same trial illustrate the point. In the first, a fully-tried Title VII sex harassment case ends with a liability verdict against the employer, but with $0 in damages. Yet creative lawyering saves the day, preserving prevailing-party status by obtaining a reformation of the employee’s personnel file. In the second, the panel remands for reconsideration of attorney’s fees in light of an unaccepted Rule 68 offer of judgment.
Furcron v. Mail Centers Plus, LLC, Nos. 18-12598 and -14636 (11th Cir. June 12, 2019): The Supreme Court in Buckhannon Board and Care Home v. West Virginia Dep’t of Health and Human Services, 532 U.S. 598 (2001), held that there must be a “material alteration of the legal relationship of the parties” to authorize an award of attorney’s fees to plaintiff under a “prevailing party” fee-shifting statute. This necessitates the award of damages or entry of some judgment, however modest, ordering the defendant to do something of benefit to the plaintiff.
After some four years of litigation, including an in-between trip to the Eleventh Circuit (Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295 (11th Cir. 2016)), a jury held that plaintiff Furcron suffered sex harassment but awarded her no damages.
The jury verdict form included two questions relevant to relief: “Question Five then asked whether ‘Furcron suffered damages because of the hostile work environment.’ Question Six asked whether ‘Furcron should be awarded damages to compensate for emotional pain and mental anguish due to the hostile work environment.'” The jury answered “yes” to the first, and “no” to the second.
While the plaintiff’s lawyer challenged the verdict as inconsistent, the judge held that the two answers could be reconciled:
“The court … conclud[ed] that the verdict was not irreconcilable because the jury could follow the instructions and still reach the verdict that it did. For example, the court reasoned, the jury could have felt that she suffered damages but failed to prove them, or the jury may have felt that she was damaged but was not entitled to money for the kind of damage that she suffered.”
Post-trial, the plaintiff sought – in addition to a new damages trial – an award of nominal damages and injunctive relief. The court refused to reopen the verdict to include a nominal award, but did order “MCP to (1) implement a new training program to train management on how to deal with Title VII harassment cases and (2) include a copy of the verdict in Furcron’s personnel file, if MCP also included documents relating to Furcron’s termination in her personnel file.”
The Eleventh Circuit substantially affirms. In the first appeal (18-12598), the panel agrees with the district court that the verdict form was not inconsistent, and there was no basis upon which to reopen the verdict to add a nominal award. (Here, we note that in the Ninth Circuit, it would be the judge rather than the jury who would award nominal relief, because such an award is deemed equitable: Bayer v. Neiman Marcus Group, Inc., 861 F.3d 853 (9th Cir. 2017).)
It also affirms part of the injunctive relief, i.e., “to the extent that it requires [defendant] to include a copy of the complaint and verdict in Furcron’s personnel file. The court was entitled to fashion the ‘most complete relief possible,’ and Furcron would benefit from having those documents included in her file to provide the full context of her employment.” Yet the panel vacates the harassment training, finding that it would not benefit plaintiff who by then was a former employee.
In the second appeal (18-14636), the panel is confronted with the problem of whether the attorney’s fee award ($284,996.56) could be sustained in light of a Federal Rule of Civil Procedure 68 offer of judgment of $20,000 served early in the case. (Under Rule 68, if the plaintiff prevails at trial but the relief “is not more favorable” than the offer, she forfeits any award of costs incurred after the offer was made, including attorney’s fees. Marek v. Chesny, 473 U.S. 1 (1985).)
The district court originally upheld the fee award on the ground that “[i]n light of the important role equitable relief plays in the Title VII context, . . . [T]he judgment obtained by Plaintiff is more favorable than the unaccepted offer.”
But the panel holds that with the harassment training knocked out, the comparison was now between the $20,000 offer and the order reforming the plaintiff’s personnel file. “Because we modified the equitable relief granted, we must vacate the order awarding attorneys’ fees and remand for the district court to consider whether the existing equitable relief is ‘more favorable’ than the $20,000 offer.”