Judge Adalberto Jordan: Testimony before Congress is not something a judge normally sees in a fee petition.
Judge Adalberto Jordan: Testimony before Congress is not something a judge normally sees in a fee petition. (J. Albert Diaz)

A case prompting judges to debate whether using the word “boy” to describe an African-American man could be evidence of race discrimination made another stop at the U.S. Court of Appeals for the Eleventh Circuit on Thursday.

“Is this case still around?” Judge Charles Wilson asked as the plaintiff’s lawyer approached the lectern at the courthouse in Atlanta.

Indeed, it is. Although arguments over the word “boy” are done, the fight over attorney fees is not.

Before the three-judge panel was the case of John Hithon, who ultimately won his case against Tyson Foods. He twice won jury verdicts of more than $1 million, only to see judges toss them as improper. An Eleventh Circuit panel that initially ruled against him then changed its mind and allowed the $364,049 compensatory portion of the award from the second trial to stand.

Tyson has paid that award but has succeeded in limiting the plaintiff’s $2.97 million fee request to $281,103.25.

The magistrate judge who slashed Haynes’ fee request said it was full of problems, including duplicate entries and bills for time spent on unsuccessful claims and tasks such as speaking to the media and preparing to testify before the Senate Judiciary Committee.

Backed by a national association of plaintiffs’ employment lawyers, Hithon’s attorneys pressed their appeal at the Eleventh Circuit on Thursday. Birmingham lawyer Charles Guerrier argued that time spent on unsuccessful claims wasn’t included in the fee petition. He added that slashing the lawyers’ recovery would discourage good lawyers from taking on employment discrimination cases. Peyton Lacy Jr. of Ogletree Deakins Nash Smoak & Stewart in Birmingham argued for Tyson that the billing records submitted to the magistrate judge who handled the case were a “mess.”

Filed in 1996, the case originally involved six plaintiffs claiming race discrimination at Tyson. After years of litigation, the case had been whittled to two plaintiffs saying they were denied promotions at the Gadsden, Ala., plant because they were African-American.

The manager of the plant, Tom Hatley, who is white, in 1995 passed over Hithon and another black man, Anthony Ash, for shift manager positions. Hatley brought in two white men from other Tyson plants to fill the jobs.

Hithon later testified that at some point before the promotion decisions at issue were made, he heard Hatley say, “hey, boy,” as Hithon was leaving a conference room. Ash testified that Hatley once walked up to him in the cafeteria and said, “boy, you better get going,” in a “mean and derogatory way.”

At a 2002 trial, the jury sided with the plaintiffs, awarding Hithon and Ash $250,000 each in compensatory damages and $1.5 million each in punitives. U.S. Magistrate Judge Robert Armstrong Jr., who presided over the trial, overruled the jury’s verdict, saying there wasn’t enough evidence from which a jury reasonably could find that Hithon and Ash lost the promotions because they were black.

An Eleventh Circuit panel of judges Edward Carnes, Joel Dubina and Stanley Marcus then ruled that Hithon’s claims should be heard at trial again. That was a victory for Hithon, although the panel also said the damages award was excessive. The panel rejected Ash’s appeal to reinstate his case.

It also warned that the term “boy,” when not modified by a racial classification such as “black,” was not evidence of discrimination.

Ash and Hithon sought review by the U.S. Supreme Court. The justices said the Eleventh Circuit may have gotten the right result but summarily vacated the lower court’s opinion anyway. One problem, the justices said, was the panel’s conclusion that “boy,” standing alone, could never be evidence of racial bias.

The high court also took issue with how the Court of Appeals approached a plaintiff’s comparison of job candidates’ qualifications to establish an employer’s stated reasons for an adverse employment decision are pretext for discrimination. The Eleventh Circuit had held that the comparison could be considered only when “the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.”

On remand from the high court, the Eleventh Circuit panel reinstated its previous holdings. It said the usages of the word “boy” were “conversational,” “non-racial in context” and “remote in time to the employment decision.”

The second trial involved only Hithon. Armstrong again allowed in evidence of the alleged use of the word “boy,” based on trial counsel Alicia Haynes’ promise to present testimony on the context of the word’s use in the case.

The second jury found for Hithon, awarding him $35,000 in back pay, $300,000 in compensatory damages for his mental anguish, and $1 million in punitives. On Tyson’s motion, Armstrong vacated the punitive damages award but let stand the rest of the verdict.

Another Eleventh Circuit panel squashed that verdict in August 2010 by a vote of 2-1. It said the evidence didn’t support Hithon’s argument that Hatley’s explanation that he wanted to bring in outside managers must be pretext for discrimination—because the plant wasn’t really performing poorly.

As for the use of the word “boy,” the panel majority of Carnes and Judge William Pryor Jr., who ruled for Tyson over the dissent of a visiting judge, said it could not revisit its earlier ruling that the alleged comments were merely stray remarks. In its opinion, the panel also chastised Haynes for asking what they considered a “highly improper” question of Ash at trial: When Ash compared Hatley’s alleged use of the word “boy” to using “the ‘N’ word,” Haynes asked a follow up question that used the full “N” word.

But more than a year later, while Hithon’s petition for review by the full Eleventh Circuit was pending, the same panel did an unusual about-face. It issued a new ruling, saying there was enough evidence for a jury to find that Hatley used the term “boy” in a “racially demeaning way” and that the evidence cumulatively was enough to support the jury’s finding of discrimination and compensatory award.

The Eleventh Circuit having affirmed the second jury’s verdict in part, Armstrong turned to considering the plaintiff’s request for fees and costs, which federal law allows a judge to award the prevailing party in a racial discrimination suit. The plaintiff’s request, including work done by nine lawyers, sought more than $2.97 million in fees. Nearly $2 million purportedly was supported by time records. The lawyers also sought a 50 percent increase because, they said, there was a risk throughout the case that they would not win, the results obtained were exceptional, and the plaintiff and his counsel suffered “inconvenience and embarrassment” during the case.

Based on the problems he found with the request, Armstrong slashed the number of hours claimed by 80 percent. After adjusting some of the hourly rates cited by the plaintiffs, the total amount Tyson was ordered to pay was $281,103.25 in fees and costs of $16,480.51.

“It appears … you invoked the ire of the district court,” Wilson told Guerrier as he began to speak to the judges on Thursday. Wilson suggested the plaintiff’s lawyers had irritated the magistrate judge by not filing a new petition striking time spent on unsuccessful claims.

Guerrier replied that the plaintiff had filed a motion asking the judge for clarification on what he wished to be filed, but he didn’t rule on the motion. Haynes, Guerrier’s colleague and lead counsel on the matter, already had removed time spent on unsuccessful claims, redlining 1,500 hours, Guerrier said.

Judge Adalberto Jordan, who heard the appeal with Wilson and Senior Judge Susan Black, said other things in the petition probably “ticked off” the magistrate. Testimony before Congress is not something a trial judge normally sees in a fee petition, Jordan added.

Guerrier replied that case law says a lawyer can collect for congressional testimony if the case justifies it. He added that senators had contacted Haynes because the case had received so much attention. “It was testimony that was responsive to a request about this case,” said Guerrier, adding that a paying client would have been billed for that.

Asked by Jordan whether he had any basis to argue that the district court had to grant the fee petition in its entirety, Guerrier said no judge has to accept a fee petition without question, even if the opposing party does not oppose it. But under Supreme Court precedent, said Guerrier, “We need something that is objective, is reviewable and is … predictable.”

When Wilson pointed out to Tyson’s lawyer that the 80 percent reduction was “a big chunk,” Lacy noted Tyson had contended the petition was so flawed it should be rejected altogether. But pressed further by Wilson, he acknowledged he couldn’t say exactly how the magistrate arrived at 80 percent.

Wilson noted the 80 percent reduction applied even to University of Washington law professor Eric Schnapper’s work on the plaintiff’s behalf before the U.S. Supreme Court. “That appeal … had a pretty big impact,” said Wilson, saying the high court’s decision made it easier for plaintiffs to show pretext.

Lacy disagreed with that assessment, saying any difference between the old and new standards was semantic.

Wilson expressed concern that cutting a fee petition would remove lawyers’ incentive to take on employment discrimination cases. “That’s not the intent of Congress,” said Wilson. He said the plaintiffs’ persuading a jury to award $1 million in punitive damages, only to have judges take that away, “could cut both ways” in determining the fee issue.

Lacy, arguing for Tyson, disagreed that the courts’ removal of the punitives award from the recovery should weigh in the plaintiff’s favor on the fee question. He suggested that the plaintiff would have had no victory for which to ask for attorney fees had he moved for a mistrial after the plaintiff’s lawyer used “the N-word” at trial. Lacy said not seeking a mistrial was a “strategic decision” on his part—”a bad one.”

“You take the risk of winning and you take the risk of losing,” Lacy said.

On remand, Guerrier argued that even time records that referenced other plaintiffs were compensable, saying those people all were witnesses for Hithon’s case. Wilson suggested this was not the plaintiff’s best argument, however, and Jordan asked Guerrier whether the magistrate could have done an across-the-board reduction of the request at any percentage, such as 15 percent.

Guerrier said that a percentage reduction is allowable for convenience sake, if the judge explains how he arrived at the percentage, such as sampling some portion of the bill. But he said an 80 percent reduction will undermine Congress’ intent. “The statute is there to encourage competent counsel.”