Mercer v. Ala. Dep't of Transp.

REPORT AND RECOMMENDATION

This case was referred to the Magistrate Judge to report and recommend on matters related to Plaintiff's Motion for Declaratory and Injunctive Relief and Attorney's Fees and Costs. Docs. 143 & 168. The court instructed the Magistrate Judge to address "the motion in light of the Eleventh Circuit's decision in Canup v. Chipman-Union, Inc., 123 F.3d 1440 (11th Cir. 1997), and 42 U.S.C. § 2000e-5(g)(2)(B)," and to "analyze the number of hours reasonably expended by Plaintiff's counsel in prosecuting the Title VII race discrimination claim in this case." Doc. 168. For the following reasons, the Magistrate Judge recommends that the motion be denied. If the district court rejects that recommendation in whole or in part, the Magistrate Judge alternatively recommends that the motion be granted in part, as explained below.

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In his third amended complaint, Plaintiff Benjamin Mercer alleged that Defendant Alabama Department of Transportation ("ALDOT") discriminated against him in his termination and retaliated against him. Doc. 32. The court granted summary judgment to ALDOT on the retaliation claim, but the discrimination claim survived. Doc. 85. After a four-day trial, the jury found that Mercer had proven that his race was a motivating factor prompting ALDOT to discharge him from his employment, but that ALDOT had proven that it would have discharged him for race-neutral reasons even if it had not taken his race into account. Doc. 133.

Following the trial, Mercer filed a Motion for Declaratory and Injunctive Relief and Attorney's Fees and Costs. Doc. 143. Specifically, Mercer requested the court to (1) issue declaratory relief, (2) issue an injunction against ALDOT restoring his concrete certification license, and (3) award him attorney's fees and costs. Docs. 143 & 143-1. The parties exhaustively briefed the issues presented in the motion (Docs. 142, 143-2, 151, 154, 170, 173, 180, 181, 183-87, 193 & 194), and on July 8, 2020 the Magistrate Judge held a lengthy hearing on the motion, which is now under submission.

Mercer contends that Title VII entitles him to declaratory relief, injunctive

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relief, and attorney's fees and costs because the jury found that his race was a motivating factor in ALDOT's decision to terminate him. More specifically, as stated in his third amended complaint, Mercer asks the court to declare "that race played a role in the decision of [ALDOT] to terminate his employment." Doc. 32 at 1. He also seeks a "permanent injunction restraining ALDOT from failing to reinstate his license as a Concrete Technician." Doc. 143-2 at 5. Finally, he seeks an award of attorney's fees and costs.

Before addressing the merits of the requests, the court takes up ALDOT's contention that Mercer's requests for declaratory and injunctive relief are barred by the pretrial order's omission of the requested relief. Docs. 142 at 2 & 151 at 26. The absence of a specific request for injunctive or declaratory relief in a pretrial order is not a waiver of the entitlement to that relief after trial. Cooper v. Ambassador Personnel, Inc., 570 F. Supp. 2d 1355, 1358 (M.D. Ala. 2008). Mercer requested both declaratory and injunctive relief in his third amended complaint. Doc. 32. And while the precise injunctive relief now at issue was not explicitly alleged in the third amended complaint, Federal Rule of Civil Procedure 54(c) mandates that all judgments, save for those rendered in default, should "grant the relief to which a party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." See also Carter v. Diamondback Golf Club, Inc., 222

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F. App'x 929, 931 (11th Cir. 2007) ("Rule 54 requires the district court to grant the relief to which each plaintiff is entitled, even if that relief is not requested in the complaint."). Having resolved this preliminary matter, the court turns to the merits of Mercer's motion.

Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to discharge . . . any individual . . . because of such individual's race." 42 U.S.C.A. § 2000e-2(a). Under the 1991 amendments to Title VII, "an unlawful employment practice is established when the complaining party demonstrates that race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C.A. § 2000e-2(m). An employer, however, can limit its liability if it establishes that it "would have taken the same action in the absence of the impermissible motivating factor." 42 U.S.C.A. § 2000e-5(g)(2)(B). That is exactly what the jury found in this case. Specifically, the jury found that Mercer proved that his race was a motivating factor in ALDOT's decision to discharge him, but that ALDOT proved that it would have discharged him for race-neutral reasons even if it had not considered his race. Doc. 133.

In this posture, the court has the discretion to "(i) . . . grant declaratory relief, injunctive relief . . . , and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m)" but it "(ii) shall

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not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment." Additionally, the Eleventh Circuit has found an award of fees to be "appropriate when declaratory or injunctive relief is awarded or where intentional discrimination is so blatant and egregious that failure to award attorney's fees to Plaintiff would constitute an injustice." Canup, 123 F.3d at 1444 (internal quotation marks omitted).

Under 42 U.S.C. § 1988, "[i]n any action or proceeding to enforce a provision of . . . Title VII of the Civil Rights Act of 1964 . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." To be entitled to an award of attorney's fees, one must qualify as a prevailing party. And "to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought[] or comparable relief through a consent decree or settlement." Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citations omitted). Essentially, "[i]f 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." Tx. St. Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989) (citation omitted). The decision whether to award any fees under § 2000e-5(g)(2)(B) is "plainly a

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discretionary one." Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332, 1335 (4th Cir. 1996); Canup, 123 F.3d at 1442 (noting that § 2000e-5(g)(2)(B) "uses permissive language ('may grant') when discussing attorney fees").

With this legal background in mind, the court first must address whether Mercer is entitled to declaratory or injunctive relief. If so, the court then would determine the reasonable attorney's fees and costs. If not, however, the inquiry does not end. Instead, as noted above, the Eleventh Circuit instructs that—even where a declaratory judgment and injunction are inappropriate—a plaintiff still may recover a reasonable attorney's fee and costs when the defendant's intentional discrimination was blatant and egregious. If so, the issue again becomes the reasonableness of the fees and costs sought. If the court rejects the plaintiff's request for declaratory and injunctive relief and also finds that the discrimination is not blatant or egregious, no award is recoverable. Canup, 123 F.3d at 1444-45.

A. Declaratory and Injunctive Relief

The Declaratory Judgment Act permits a district court to "declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a); Eisenberg v. Standard Ins. Co., 2009 WL 3667086, at *2 (S.D. Fla. Oct. 26, 2009). However, as noted above, with respect to a request for declaratory relief in mixed-motive Title VII

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cases, 42 U.S.C. §§ 2000e-5(g)(2)(B) limits the relief available: the declaratory relief must "be directly attributable only to the pursuit of a mixed motive claim." Carter, 222 F. App'x at 932 (internal quotation marks omitted).

A declaratory judgment requires "the settling of some dispute which affects the behavior of the defendant towards the plaintiff." Rhodes v. Stewart, 488 U.S. 1, 3-4 (1988); see also Hewitt v. Helms, 482 U.S. 755, 761 (1987). If not for the settling of a dispute, any declaratory judgment would be an improper advisory opinion. Rhodes, 488 U.S. at 3-4. Therefore, a declaratory judgment is not appropriate if it will not result in action on the part of the defendant. Cooper, 570 F. Supp. 2d at 1360 (finding declaratory relief inappropriate "[b]ecause [the plaintiff] no longer works for [the defendant], the declaration [the plaintiff] seeks would not clarify the parties' legal relationship").

Here, Mercer "seeks a declaratory judgment that race played a role in the decision of [ALDOT] to terminate his employment." Doc. 32 at 1. In his brief in support of his motion, Mercer phrases the requested declaration as asking the court to "declare that Defendant ALDOT violated Title VII in its discharge of Plaintiff." Doc. 143-2 at 24. Neither formulation is appropriate. Any judicial pronouncement that ALDOT violated Title VII when it terminated Mercer would not affect ALDOT's behavior or clarify the relationship between ALDOT and Mercer because

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Mercer is no longer employed by ALDOT. Canup...