Hetzel v. Prince William Co ( 1998 )

Reversed by Supreme Court on March 23, 1998.
Filed: August 19, 1996
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 95-1935(L)
(CA-94-919-A)
Janice E. Hetzel,
Plaintiff - Appellee,
versus
County of Prince William, et al,
Defendants - Appellants.
O R D E R
The Court amends its opinion filed July 11, 1996, as follows:
On page 5, first full paragraph, line 2 -- the comma after the
word "own" is moved to follow the word "brief" -- "Hetzel's own
brief, conclusory statements."
On page 9, first paragraph, line 10 -- the word "injunction"
is corrected to read "injunct ive."
On page 9, second full paragraph, line 3 -- the word "backpay"
is corrected to read "back pay."
For the Court - By Direction
/s/ Bert M. Montague
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANICE E. HETZEL,
Plaintiff-Appellee,
v.
COUNTY OF PRINCE WILLIAM;
CHARLIE T. DEANE, No. 95-1935
Defendants-Appellants,
and
G. W. JONES; C. E. O'SHIELDS,
Defendants.
JANICE E. HETZEL,
Plaintiff-Appellant,
v.
COUNTY OF PRINCE WILLIAM;
CHARLIE T. DEANE, No. 95-2004
Defendants-Appellees,
and
G. W. JONES; C. E. O'SHIELDS,
Defendants.
JANICE E. HETZEL,
Plaintiff-Appellant,
v.
COUNTY OF PRINCE WILLIAM;
CHARLIE T. DEANE, No. 95-2010
Defendants-Appellees,
and
G. W. JONES; C. E. O'SHIELDS,
Defendants.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-94-919-A)
Argued: June 5, 1996
Decided: July 11, 1996
Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Ervin and Judge Hamilton joined.
_________________________________________________________________
COUNSEL
ARGUED: Sharon Elizabeth Pandak, County Attorney, Prince Wil-
liam, Virginia, for Appellants. John Michael Bredehoft, CHARLSON
& BREDEHOFT, P.C., Reston, Virginia, for Appellee. ON BRIEF:
Angela M. Lemmon, Assistant County Attorney, Megan E. Kelly,
Assistant County Attorney, Prince William, Virginia; Bernard J.
DiMuro, DIMURO, GINSBERG & LIEBERMAN, P.C., Alexandria,
2
Virginia, for Appellants. Elaine C. Bredehoft, CHARLSON &
BREDEHOFT, P.C., Reston, Virginia, for Appellee.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Appellee, Janice E. Hetzel, an hispanic female who currently is a
police officer in good standing in Prince William County, Virginia,
brought the instant action against appellants, Prince William County
and Police Chief Charlie T. Deane, as well as against other police
officers not parties to this appeal, under Title VII and section 1983
alleging harassment and discrimination on the basis of sex and
national origin. Hetzel also claimed that because of her attempts to
enforce her right to be free of discrimination, the defendants took var-
ious retaliatory actions, including failing to promote her to the rank
of sergeant, in violation of the First Amendment, the Equal Protection
Clause and Title VII. She requested some $9.3 million in damages
plus backpay, retroactive promotion to sergeant, and other injunctive
relief.
After an 8-day trial, the jury rejected all of Hetzel's counts (seven
in all) alleging sex and national origin discrimination and that she was
denied a promotion because of such discrimination, finding that the
defendants had not engaged in any invidious discrimination in viola-
tion of Title VII. The jury concluded, however, that Chief Deane
retaliated against Hetzel "because of [her] engaging in protected
speech," and awarded $750,000 in damages for Hetzel's emotional
distress. Following the verdict, the district court granted appellants'
motion as a matter of law on one of Hetzel's three retaliation claims,
and thus reduced the damage award to $500,000. The court also
awarded appellee in excess of $180,000 in attorney's fees and costs,
but, because the court was concerned that "there is a likelihood that
[Hetzel] would interpret any act of discipline as retaliation," it refused
to grant Hetzel any injunctive relief against future retaliation. J.A. at
291. For similar reasons, the district court denied Hetzel's request for
retroactive promotion to sergeant, noting that "[a]lthough the jury
may have found that the failure to promote was retaliatory, the verdict
3
is too ambiguous to support the equitable relief requested by plaintiff.
Having observed the plaintiff's demeanor at trial, the Court is con-
cerned that plaintiff does not now possess the temperament necessary
to be an effective sergeant." Id. at 290; see also id. at 291 & n.5.
Both parties appealed raising numerous issues. We leave intact the
jury's finding of liability on appellee's retaliation claims. Because we
conclude that both the damage award and the award of attorney's fees
are excessive as a matter of law, however, we reverse the judgment
of the district court and remand the case for further proceedings.
I.
Appellants first contend that the award of $500,000 for emotional
distress, based almost entirely on Hetzel's own self-serving testimony
concerning stress and headaches, is unsupported by the evidence and
excessive as a matter of law. Hetzel, acknowledging that the evidence
of damages comes largely from her own testimony, responds that the
award is supported by the uncontroverted evidence, is similar to other
awards for mental distress in comparable cases, and is easily justified
by the numerous adverse actions taken by appellants. Although Hetzel
claims that denial of transfers, disparate disciplinary treatment, poor
performance evaluations, abusive treatment, a 1995 Internal Affairs
("I.A.") investigation, and the failure to promote are all adverse
employment actions supporting the damage award, only the alleged
failure to promote and the 1995 I.A. investigation can even possibly
constitute adverse retaliatory action, as the other acts either were
taken outside the statute of limitations or did not deprive Hetzel of a
valuable government benefit, see, e.g., Huang v. Board of Governors,
902 F.2d 1134, 1140 (4th Cir. 1990).
A jury's award of compensatory damages will be set aside on the
grounds of excessiveness only if "``"the verdict is against the clear
weight of the evidence, or is based upon evidence which is false, or
will result in a miscarriage of justice,"'" Johnson v. Hugo's Skateway,
974 F.2d 1408, 1414 (4th Cir. 1992) (en banc) (quoting Johnson v.
Parrish, 827 F.2d 988, 991 (4th Cir. 1987) (quoting Aetna Cas. &
Sur. Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir. 1941))), or "no sub-
stantial evidence is presented to support it," Barber v. Whirlpool
Corp., 34 F.3d 1268, 1279 (4th Cir. 1994). The district court, with lit-
4
tle analysis, rejected appellants' claim that the $500,000 damage
award for emotional distress was excessive, concluding that the award
was fully supported by the evidence because "most importantly" Het-
zel "was crying and shaking throughout most of the trial." J.A. at 284.
Quite obviously, a litigant's demeanor while at counsel's table is not
evidence to support a damage award.
The evidence presented at trial concerning Hetzel's emotional dis-
tress consisted almost exclusively of Hetzel's own brief, conclusory
statements -- comprising less than ten pages of a joint appendix
exceeding 5,000 pages -- that she had headaches, stress, trouble read-
ing to her daughter, and problems with her family life as a result of
appellants' actions. Hetzel presented no evidence corroborating the
existence of any of her supposed specific harms. She remains an offi-
cer in good standing with the police department. She continues to per-
form her duties with no noticeable diminution in performance, as her
most recent performance evaluation, which was nothing short of stel-
lar, confirms. She has no observable injuries or physical ailments.
Indeed, although Hetzel insists that she was devastated and humiliated
by appellants' actions, she has never once seen a doctor, therapist, or
other professional, or even sought the counsel of a friend, to help her
deal with what is supposedly an enormous problem overshadowing all
aspects of her life.
Hetzel's thin evidence of rather limited damages would in-and-of
itself entitle her to only a minimal damage award for intangible inju-
ries. See, e.g., Rodgers v. Fisher Body Div., 739 F.2d 1102, 1108 (6th
Cir. 1984) (holding that plaintiff's own brief testimony that he was
forced to go on welfare and had his car repossessed causing humilia-
tion and distress was insufficient to support a sizeable award for emo-
tional distress), cert. denied, 470 U.S. 1054 (1985); cf. Carey v.
Piphus, 435 U.S. 247, 264 (1978) ("[A]lthough mental and emotional
distress . . . is compensable under § 1983, we hold that neither the
likelihood of such injury nor the difficulty of proving it is so great as
to justify awarding compensatory damages without proof that such
injury actually was caused."). However, only a part of Hetzel's harms
are properly attributed to appellants' retaliatory actions. Much, if not
all, of Hetzel's claimed distress was actually caused by her erroneous
belief that she was the victim of invidious discrimination, and of
course, given the jury's findings for the defendants on all of Hetzel's
5
claims of discrimination, Hetzel is entitled to no damages for any
injuries which were caused by her belief that she was the victim of
invidious discrimination. Sergeant Collier, the one witness Hetzel
points to as corroborating her contention that the appellants' retalia-
tory actions caused her intangible injuries, testified that Hetzel had
told him that she was under continuous emotional stress and feeling
a "sense of frustration" because of her "dealing with this issue of
discrimination." J.A. at 1352 (testimony of Sgt. Collier) (emphasis
added). Moreover, as the district court recognized, but failed to take
into account in its brief examination of the magnitude of the damages,
some of Hetzel's stress and emotional difficulties must be attributed
to her tendency to overreact to situations. See id. at 291 n.5.1
The only other evidence of emotional distress that even arguably
supports an award of damages is Hetzel's reaction following a fifteen-
to-twenty minute Internal Affairs interview, conducted on January 15,
1995, concerning whether Hetzel had improperly advised a suspect of
his Miranda rights -- an investigation which led to an oral reprimand
for Hetzel's improper actions. While we have significant doubts as to
whether this interview constitutes an adverse employment action
which is actionable under Title VII or section 1983, we do not here
need to conclusively decide that issue because any temporary reaction
Hetzel may have had to this interview does not entitle her to any sub-
stantial or significant damage award. Although other officers testified
_________________________________________________________________
1 As the district court noted:
[A discussion] conducted by Sergeant Metheny on February 24,
1995 provides a clear example of the risk of plaintiff's overreac-
tion. The [discussion] was designed to explore plaintiff's under-
standing of the Miranda warning and to eliminate any confusion
plaintiff may have had about the requirements for a proper
waiver. . . . Despite Sergeant Metheny's assurance that she
would not be disciplined for [a] 1993 case, and before he could
question her about it, plaintiff responded that"[i]f you're going
to get into this, I refuse to answer any questions right now and
I'm going to walk out of here because this is complete harass-
ment." Even First Sergeant Collier, plaintiff's supervisor and
strongest supporting witness, felt that plaintiff overreacted to the
[discussion].
Id. (internal citations omitted).
6
that Hetzel was briefly distraught following the interview, Hetzel,
after composing herself, finished out the remainder of her shift.
Plainly a $500,000 award for a reaction following a brief interview
during the course of a successful investigation is a gross miscarriage
of justice.
Simply put, the jury was presented with insufficient evidence "to
place a high dollar value on plaintiff's emotional harm." Rodgers, 739
F.2d at 1108. That this award is outrageous is confirmed by even a
cursory analysis of the impressive array of cases cited by the appellee
in support of the jury verdict. These cases, all of which contained a
substantial award of $25,000 or more for intangible injuries such as
emotional distress, involved plaintiffs that either were the victims of
invidious discrimination, suffered serious -- often permanent --
physical injuries, or were discharged and had difficulty finding alter-
native employment. See Appellee's Br. at 32-34 & n.29. For example,
in Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir. 1994),
the Sixth Circuit rejected the contention that an award of $25,000 for
mental anguish, humiliation and loss of reputation to an assistant fire
chief unconstitutionally forced to retire was excessive and not sup-
ported by the evidence because the fire chief, who had been
discharged, had lost ten pounds, suffered from insomnia, and was
under a doctor's care for stomach problems. In another case bearing
some similarity to the instant case, Wulf v. City of Wichita, 883 F.2d
842, 874-75 (10th Cir. 1989), the court held that a $250,000 award
for emotional distress to a police officer following unlawful
termination, which was supported only by the testimony of the plain-
tiff that he was stressed, angry, depressed and frustrated, and similar
testimony from his wife, was grossly excessive and remanded the
case for recalculation of damages not to exceed $50,000. In stark con-
trast to these cases, and the others relied upon by the appellee -- most
of which did not involve an award of damages for emotional distress
even approaching the magnitude of the award in this case -- Hetzel
suffered no discrimination, was not physically injured, is not under
the care of a physician, and remains an officer in good standing on
the Prince William County police force. See also Spence v. Board of
Educ., 806 F.2d 1198, 1200-01 (3d Cir. 1986) (affirming district
court's remittitur of jury award of $22,060 for emotional distress
where plaintiff testified that she was "depressed and humiliated" by
a retaliatory transfer).
7
As this court has often remarked, "an award of substantial compen-
satory damages . . . must be proportional to the actual injury incurred.
. . . The award must focus on the real injury sustained . . . ." Piver
v. Pender County Bd. of Educ., 835 F.2d 1076, 1082 (4th Cir. 1987),
cert. denied, 487 U.S. 1206 (1988). Here, the award of $500,000 was
grossly excessive when compared to the limited evidence of harm
presented at trial and would result in a serious "miscarriage of justice"
if upheld. Accordingly, we set aside the damage award and remand
the case to the district court for recalculation of the award of damages
for emotional distress.2 Upon remand, the district should closely
examine the awards in Bradley v. Carydale Enter., 730 F. Supp. 709,
726-27 (E.D. Va. 1989), and McClam v. City of Norfolk Police Dep't,
877 F. Supp. 277, 284 (E.D. Va. 1995), which we believe are compa-
rable to what would be an appropriate award in this case.
II.
Appellants also contend that the district court erred in granting
appellee's entire $176,293 request for attorney's fees. The district
court, after concluding that the unsuccessful discrimination and
harassment claims against all defendants -- two of which are not
even a party to this appeal because they fully prevailed -- "shared a
common core of operative facts" with the successful retaliation claims
against the city and Chief Deane, and that Hetzel had achieved signif-
icant relief in the form of a "substantial damage[ ]" award, granted
appellee's full petition for attorney's fees. J.A. at 288-89. We will
reverse a district court's determination of attorney's fees only "if
under all the facts and circumstances [the award] is clearly wrong."
Hugo's Skateway, 974 F.2d at 1418 (internal quotation marks omit-
ted).
Especially in light of our determination that the evidence does not
support a substantial damage award, we believe the award of
$176,293 in attorney's fees was "clearly wrong." Given the limited
results she obtained in this case, Hetzel is not entitled to an award of
_________________________________________________________________
2 Because we conclude that the $500,000 award is outrageous, we do
not need to address Hetzel's contention that the district court improperly
reduced the award by $250,000 in granting a judgment as a matter of law
for the defendants on one of her retaliation claims.
8
significant, much less full, attorney's fees. As the Supreme Court has
instructed, "``[w]here recovery of private damages is the purpose of
. . . civil rights litigation, a district court, in fixing fees, is obligated
to give primary consideration to the amount of damages awarded as
compared to the amount sought.'" Farrar v. Hobby, 506 U.S. 103,
114 (1992) (quoting Riverside v. Rivera, 477 U.S. 561, 585 (1986)
(Powell, J., concurring in the judgment)). Whereas Hetzel's complaint
requested $9.3 million in damages, back pay, retroactive promotion
to sergeant, and other injunctive relief, she will ultimately receive
only a pittance of her original damages request and no injunctive
relief, promotion nor back pay. Moreover, the Supreme Court has also
explained that,
[w]here a plaintiff has obtained excellent results, his attor-
ney should recover a fully compensatory fee. . . . We
emphasize that the inquiry does not end with a finding that
the plaintiff obtained significant relief. A reduced fee award
is appropriate if the relief, however significant, is limited in
comparison to the scope of the litigation as a whole.
Hensley v. Eckerhart, 461 U.S. 424, 435, 439-40 (1983) (emphasis
added); see also Farrar, 506 U.S. at 114 ("Indeed, ``the most critical
factor' in determining the reasonableness of a fee award ``is the degree
of success obtained.'" (quoting Hensley, 461 U.S. at 436)). Here, Het-
zel failed on her core claims -- the seven counts alleging invidious
sex and national origin discrimination. Because Hetzel has gained but
an insignificant portion of the relief she originally requested and
because she has failed to prevail on her most consequential claims,
she is entitled only to a fraction of her attorney's fees.
In sum, we vacate the fee award and remand to the district court
for reconsideration of appellee's fee petition.
III.
Finally, we consider appellee's cross-appeal. Hetzel claims that
because she prevailed on her retaliation claim she is "presumptively"
entitled to equitable relief in the form of front and back pay, or retro-
active promotion to sergeant, and that the district court abused its dis-
cretion in refusing to award any such relief. We disagree. With
9
respect to backpay, the evidence clearly showed that Hetzel earned
more as a police officer than she would have earned as a sergeant
because officers, but not sergeants, are paid overtime. With respect to
a promotion or front pay, the district court determined:
Although the jury may have found that the failure to pro-
mote was retaliatory, the verdict is too ambiguous to support
the equitable relief requested by plaintiff. Having observed
the plaintiff's demeanor at trial, the Court is concerned that
plaintiff does not now possess the temperament necessary to
be an effective sergeant.
J.A. at 290. We can find nothing in the voluminous record in this case
that even suggests that the district court abused its discretion, and we
will not order that someone be promoted to a higher level within a
paramilitary organization where they lack the requisite qualities to
perform the duties of the job effectively.3
For the reasons stated herein, we reverse the judgment of the dis-
trict court and remand the case for recalculation of damages for emo-
tional distress and recalculation of attorney's fees.
REVERSED AND REMANDED
_________________________________________________________________
3 Both parties raise numerous other issues. We have carefully consid-
ered each issue and have concluded that the remaining claims either have
not been properly preserved for appeal or are without merit.
10