IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-2679

_____________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

RHONDA L. GOERLITZ,

Intervenor-Plaintiff

Appellee-Cross Appellant,

versus

CLEAR LAKE DODGE, ET AL.,

Defendants,

GULF COAST DODGE, INC., d/b/a

CLEAR LAKE DODGE,

Defendant-Appellant,

Cross-Appellee.

*****************************************************************

_____________________

No. 92-2859

_____________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

WALTER R. GRIMES,

Appellant,

versus-2-

RHONDA L. GOERLITZ,

Intervenor-Plaintiff

Appellee,

versus

CLEAR LAKE DODGE, ET AL.,

Defendants.

_________________________________________________________________

Appeals from the United States District Court for the

Southern District of Texas

_________________________________________________________________ (July 25, 1995)

OPINION ON RECONSIDERATION

Before JOHNSON, GARWOOD, and JOLLY, Circuit Judges.

PER CURIAM:

This panel's original opinion in this case was issued June 24,

1994, and was reported at 24 F.3d 265. Goerlitz filed a petition

for rehearing, and the EEOC filed a suggestion for rehearing en

banc. In response to the petition for rehearing, we withdraw our

earlier opinion and substitute the following opinion.

The Equal Employment Opportunity Commission, on behalf of

Rhonda Goerlitz, brought this sex discrimination action--in which

Goerlitz later intervened personally to raise state law issues--

against Gulf Coast Dodge, Inc., claiming that Gulf Coast fired

Goerlitz because of her pregnancy. The jury returned a defendant's

verdict in favor of Gulf Coast on all state law issues. The jury

also decided in favor of Goerlitz on the Title VII claims, but its

ruling in this respect was advisory only. The district judge1 This opinion is identical to our earlier opinion except with

respect to the introduction and sections III.B and IV. Further, a

dissent has been appended, which dissents, however, only from part

III.B.

-3- disregarded the advisory verdict, however, and ruled in f avor of

Goerlitz on her Title VII claims. We affirm both the jury and the

judge.

We affirm the district court's decision to award attorneys'

fees, but hold that the district court abused its discretion in

determining the amount of fees to be awarded. Accordingly, we

remand the case to the district court for reconsideration of the

fees in the light of this opinion. Finally, we affirm the district

court's impositio n of sanctions on Gulf Coast's attorney in

connection with post-trial matters. 1

I

Gulf Coast hired Rhonda Goerlitz to be a customer service

representative ("CSR"). Goerlitz was hired in probationary status

for the first ninety days at $1400 a month with a raise after that

to $1500 a month if given permanent status. When she began work on

July 15, 1990, Goerlitz was about one month into a pregnancy.

She worked with automobile purchasers to assure that the

ve hicle was clean when delivered, to demonstrate how to operate

various features on the automobile like the cruise control and the

radio, and to show the location of the spare tire. In the case of

a van purchase, her job included demonstrating how to fold down the

sofa bed.-4-

After about one and a half months on the job, and several

weeks after she revealed her pregnancy, Goerlitz was taken out of

h er job as a CSR and was assigned temporarily as a dispatcher to

fil l in for vacationing employees. Goerlitz's supervisor, Don

McMillan ("McMillan"), made this change in Goerlitz's assignment

after he had observed her demonstrating vehicles. McMillan stated

that Goerlitz was "too big" to enter vehicles properly. When

McMillan transferred Goerlitz from the CSR position, he told her

that when she was no longer needed as a dispatcher, he would look

into finding her a clerical position.

After a few weeks as a dispatcher, on September 10, 1990, when

McMillan was on vacation, Goerlitz slipped and fell on the service

driveway. She was taken by ambulance to an emergency room, where

it was determined that she had sprained her ankle. She returned to

w ork the same day, but Harry McGinty, who was filling in for

McMillan, instructed Goerlitz to stay home for the rest of the week

and to contact McMillan upon his return the next Monday.

On September 17, Goerlitz called McMillan to ascertain her

employment status. McMillan told her that he did not need anyone

to work in dispatch that day. In response to Goerlitz's inquiry

about her status, McMillan replied that it had not changed since

their conversation in August when he had transferred her from her

position as a CSR. According to McMillan, he told Goerlitz that he

thought they could put together a job for her doing filing and

possibly keypunch. Goerlitz asked several times during the-5-

conversation if she had been fired; McMillan answered that she had

not.

Goerlitz went to see McMillan the next day, on September 18,

and they once again discussed the file clerk job. On the day

before the meeting occurred, however, McMillan had prepared a

Personnel Action Report and had dated it effe ctive September 12,

1990. On the form, the box labeled "TERMINATION" was checked and

the following comment was written: "unable to performher duties

properly due to pregnancy." McMillan testified at trial that this

report was not a termination notice, but merely a transfer slip

indicating to the com pany's payroll clerk which department was

responsible for the employee's pay.

II

The EEOC originally brought this action again st Gulf Coast,

alleging that Goe rlitz was terminated from her position at Gulf

Coast because of her sex (pregnancy). The suit was commenced on

April 1, 1991, pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000 et seq.

Some six months later, on October 29, 1991, Goerlitz

intervened. She alleged, in addition to the Title VII action,

causes of action under the Texas Human Rights Act, T E X

. R EV

. C IV

.

S TAT

. A NN

. art. 5221k (Vernon 1991); the Texas Workers Compensation

Act, T EX

. R EV

. C IV

. S TAT

. A NN

. art. 8307c ( Vernon Supp. 1991);

intentional infliction of emotional distress; and negligent

infliction of emotional distress. Goerlitz demanded a jury.2 The court noted that "the parties agreed that the claim for

violations of Title VII presents qu estions for the Court rather

than for the jury." The district court characterized the jury's

verdict as "advisory fact findings on the non-jury fact questions."

-6- The district court granted Goerlitz a binding jury for her

state law claims, but the court determined that it would submit

interrogatories under Title VII to the jury only as an advisory

jur y, under the Civil Rights Acts of 1964. The trial began on

January 6, 1992. On January 15, the jury returned its answers to

the interrogatories in favor of the defendants on all claims.

On February 18, 1992, the district court made findings of

facts and conclusions of law on Goerlitz's claims under Title VII. 2

It concluded that the "EEOC and Goerlitz established through direct

testimony and documentary evidence that Goerlitz's pregnancy was a

substantial factor in Gulf Coast's decision to reassign her." The

court held that "Gulf Coast had failed to prove by a preponderance

of the evidence that the decision to reassign Goerlitz and then

discharge her would have been made absent her pregnancy," or that

"Goerlitz's pregnancy interfered with her ability to perform either

her job as [CSR] or her job in Dispatch."

Accordingly, the district court f ound that Goerlitz was

entitled to back pay, prejudgment interest thereon, and attorneys'

fees. The court, however, accepted the jury's finding against

Goerlitz on her state law claims, and denied Goerlitz's motions for

judgment notwithstanding the verdict and for a new trial on her

state law claims.-7-

On August 10, 1992, Goerlitz had Gulf Coast served with a writ

of execution. On the same day, Gulf Coast filed a motion to

approve the supersedeas bond. Goerlitz opposed the motion to

approve the supersedeas bond and sought sanctions for submitting a

defective bond. On September 24, the trial court held a hearing on

both motions, and the court ordered sanctions against Gulf Coast's

attorney, Grimes, on October 19.

Gulf Coast filed its notice of appeal on August 25, and on

October 30, Grimes filed a notice of appeal from the court's order

of sanctions.

III

On appeal, Gulf Coast argues that the district court erred by

enteri ng a judgment in favor of Goerlitz on her Title VII claim

when that judgment was contrary to the jury verdict in favor of the

defendant on identical state law claims. Goerlitz, on the other

hand, asserts that, according to the agreement of the parties, the

jury verdict was not binding on the district court and that any

argument to the contrary has been waived. On cross-appeal,

G oerlitz argues further that the jury verdict was unsupported by

the evidence, and that the district court should have granted her

motions f or judgment as a matter of law, or alternatively, for a

new trial.

In addition to these "merits" issues, Gulf Coast also appeals

two ancillary rulings. Gulf Coast argues that the trial court

abused its discretion, first, in awarding attorneys' fees to-8-

Goe rlitz's attorney, and, second, by imposing sanctions on Gulf

Coast's attorney, Walter Grimes. We will address each of these

issues in turn.

A

(1)

Gulf Coast's first claim is that the district court erred when

it found in favor of Goerlitz on her Title VII claim. It argues

that the jury verdict on the state law claims, which decided all

relevant issues against Goerlitz, was binding on the district

court. In support, Gulf Coast cites the Eleventh Circuit's

decision in Lincoln v. Board of Regents

, 697 F.2d 928 (11th Cir.),

cert. denied , 464 U.S. 826 (1983), which stated:

An action for reinstatement and backpay under Title VII

is by nature equitable and entails no rights under the

seventh amendment. An action for damages under § 1981,

however, is by nature legal and must be tried by a jury

on demand. When legal and equitable actions are tried

together, the right to a jury in the legal action

encompasses the issues common to both. W hen a party has

the right to a jury trial on an issue involved in a legal

claim, the judge is of course bound by the jury's

determination of that issue as it affects his disposition

of an accompanying equitable claim.

Id. at 934 (Wisdom, J.) (emphasis added) (citations omitted).

Furthermore, Gulf Coast argues that the Fifth Circuit has adopted

this holding in Ward v. Texas Employment Comm'r

, 823 F.2d 907 (5th

Cir. 1987).

Although it is not entirely clear whether the Lincoln holding

should apply in this circuit beyond the facts of Ward , we do not3 This position is consistent with the Supreme Court's recent

decision in Landgraf v. USI Film Prods.

,

___ U.S.

___ , 114 S.Ct.

1483, which affirmed our decision in Landgraf , 968 F.2d. 427 (5th

Cir. 1992), cert. granted , in part, 113 S.Ct. 1250 (1993).

-9- reach that question today. Instead, we hold that G ulf Coast waived

its right to a binding jury verdict.

The conduct in this case occurred before, and the trial took

place after, the effective date of th e Civil Rights Act of 1991,

which enacted the right to a jury trial on Title VII claims.

Throughout the district court proceedings, Gulf Coast argued that

the Civil Rights Act of 1991, and its right to a jury trial, should

not be retroactively applied. 3 The district court agreed with Gulf

Coast, and thus ordered that the selected jury would be only

advisory as to the eq uitable Title VII claim. Gulf Coast fully

agreed with this decision and repeatedly and consistently asserted

the view that the district court was the fact finder in the Title

VII case. Gulf Coast never argued before the district court that

Ward and Li ncoln applied to make the jury verdict binding. In

fact, even in its post trial motion for judgment under Rule 52(a)

Gulf Coast characterized the verdict as "only advisory to the

Court, on the . . . Title VII claim."

Because Gulf Coast argued for, and fully supported the court's

ruling that the jury would be only advisory on the Title VII case,

Gulf Coast waived any right that it might otherwise have had. S ee

Floyd v. Kellogg Sales Co. , 841 F.2d 226, 229-30 (8th Cir.) cert.

denied , 488 U.S. 970 (1988); see also Rideau v. Parkem Industrial4 Furthermore , this circuit has a long-standing rule that it

will not consider for the first time on appeal an argument not made

to the district court. E arvin v. L ynaugh , 860 F.2d 623, 627-28

(5th Cir. 1988), cert. denied

, 489 U.S. 1091, 109 S.Ct. 1558

(1989).

-10- Services, Inc. , 917 F.2d 892, 896 (5th Cir. 1990) (stating that a

party can waive a Seventh Ame ndment right to a jury trial). S ee

Hamman v. Southwestern Gas Pipeline, Inc. , 821 F.2d 299, 308 (5th

Cir. 1987). 4 In sum, it is clear that under these circumstances

the district court was not bound to apply the findings of the jury

in determining the Title VII claims. S ee Verdin v. C & B Boat Co.

,

860 F.2d 150, 154 (5th Cir. 1988).

(2)

Our task thus becomes to review the merits of the district

court's Title VII fin dings. A district court's judgment cannot

stand where its findings are clearly erroneous. F E D

. R. C IV

. P. 52.

"[A] finding is clearly erroneous when although there is evidence

to support it, the reviewing court on the entire evidence is left

with a definite and firm conviction that a mistake has been

committed." C upit v. McClanahan Contractors

, 1 F.3d 346, 348 (5th

Cir. 1993) (citing United States v. Gypsum , 333 U.S. 364 (1948)).

We are not permitted to re-weigh the evidence on appeal simply

because we disagree with the choices made by the district court.

Anderson v. Bessemer City

, 470 U.S. 564, 573-74, 105 S.Ct. 1504,

1511 (1985). But we will overturn the district court where there

is only one permissible view of the weight of the evidence. A madeo-11-

v. Zant

, 486 U.S. 214, 225-26, 108 S.Ct. 1771, 1778 (1988); Chaney

v. City of Galveston

, 368 F.2d 774, 776 (5th Cir. 1978).

Furthermore, this same standard applies even when an advisory jury

has suggested contrary findings. Fed. R. Civ. P. 52(a); V erdin v.

C & B Boat Co. , 860 F.2d 150, 154 (5th Cir 1988).

In the present case, the evidence adequately supports a

finding that Gulf Coast transferred Goerlitz because of her

pregnancy and, ultimately, discharged her for that same,

impermissible reason. The evidence, for example, reveals the

undisputed fact that McMillan completed and s igned a Personnel

Action Report regarding Goerlitz on which he checked the option

labelled "TERMINATION" and noted "UNABLE TO PERFORM DUTIES PROPERLY

DUE TO PREGNANCY." McMillan also authorized that Goerlitz be

given severance pay when he filled out the Personnel Action Report.

Furthermore, several of the plaintiff's exhibits demonstrate that

when Gulf Coast employees are transferred, "TERMINATIO N" is not

checked on the Personnel Actions Report, and the details of the

transfer are noted.

This evidence fully supports the finding that Goerlitz was

fired from her job; it adequately refutes Gulf Coast's contention

that she was transferred and that she quit. In short, the evidence

will support the finding that the reason for Goerlitz's termination

was her pregnancy. Although other evidence may support a contrary5 Specifically, there was a great deal of testimony concerning

the manner in which Goerlitz carried out her duties as a customer

service representative. First, there was testimony that Goerlitz

was too big to properly enter and exit the vehicles that she worked

in. At the same time, however, the evidence showed that Goerlitz

had gained only nine pounds from her pregnancy when she worked at

Gulf Coast. Further, there was evidence that Goerlitz wore

clothing that was not appropriate for her job, and that on at least

one occasion her clothing "rode up" on her to the point that a

customer was embarrassed--thus, reflecting poorly on Gulf Coast.

Finally, with respect to Goerlitz's job p e rformance, McMillan

testified that he received several complaints about Goerlitz, that

she had displeasing mood swings, that on at least one occasion, she

took several hours for lu nch without the permission of her

supervisor, and on yet another occasion, Goerlitz was unavailable

and nonresponsive to McMillan's page. From this testimony, a jury

could reasonably conclude that Goerlitz was terminated because of

her job performance, and not because of her pregnancy.

In addition, the testimony presented would even support a

reasonable jury in concluding that McMillan made every good faith

effort possible to keep Goerlitz at the dealership even though she

was not perfo rming her job satisfactorily. The testimony showed

that McMillan transferred Goerlitz to dispatch, believing that she

would perform better in that capacity because she had prior

experience in dispatch. Further, according to testimony, the

transfer was made, in part, to satisfy Goerlitz's own scheduling

request, and McMillan testified that Goerlitz seemed eager to try

it. After Goerlitz fell in the driveway of the dealership,

however, and then was absent for a week, the testimony shows that

she called McMillan, repeatedly asked if she had been fired, and

ignored McMillan's assurances that she had not been fired. A

reasonable jury could have believed that Goerlitz's ac c osting

attitude in this final interchange caused Goerlitz's termination--

in spite of McMillan's go od faith efforts to continue her

employment.

6 Goerlitz also argues that the district court erred in denying

her motions for a judgment notwithstanding the verdict and for a

new trial o n her state law claims. A motion for JNOV should be

granted where reasonable minds could reach only one conclusion on

the evidence as presented. A nderson v. Liberty Lobby, Inc.

, 477

U.S. 242, 250-51, 106 S.Ct. 2505, 2511 (1986); Boeing Co. v. Shipman

, 411 F.2d 365, 374 (5th Cir. 1969) (en banc). In the

present case, however, we find that the evidence presented was such

-12- fin ding, 5 we hold that the district court committed no error in

entering judgment against Gulf Coast on the Title VII case. 6that reasonable minds could disagree on its meaning. S ee supra

note 4. Accordingly, we hold that the district court committed no

error by entering a plaintiff's judgment on the Title VII case and,

at the same time, letting stand the defendants' jury verdict on the

state law claims. C f. Lytle v. Household Manufacturing, Inc.

, 494

U.S. 545, 110 S.Ct. 1331, 1338 (1990) (explaining that the judge's

role in ruling on a motion for JNOV is quite different from his

role as a factfinder).

A district court, nonetheless, can grant a new trial where the

verdict returned is against the great weight of the evidence. This

decision, however, is committed to the discretion of the trial

judge, and where the judge has denied a new tria l motion, our

review is very narrow. J ones v. Wal-Mart Stores, Inc.

, 8 70 F.2d

982, 987 (5th Cir. 1989). Given that the evidence presented would

s upport a verdict in favor of either party, we find t hat the

district court committed no reversible error in denying Goerlitz's

new trial motion. Finally, we note that our decision to uphold the

district court's Title VII judgment makes moot Goerlitz's JNOV and

new trial arguments to the extent tha t she sought to recover for

her economic damages through her state law claims, because the

court's Title VII judgment provides Goerlitz a full recovery of her

economic damages.

7 Gulf Coast contends that it is entitled to a reduction of its

back pay liability because it made an "unconditional offer" to

reinstate Goerlitz to her prior position in November of 1990. We

agree with the district court that this "offer" did not satisfy the

requirements of Ford M otor Co. v. EEOC , 458 U.S. 219, 102 S.Ct.

3057, 3063 (1982).

-13- Furthe rmore, we hold that the court committed no error in

calculating the amount of its damage award. 7

B

In addition to its damage awar d, the district judge ordered

Gulf Coast to pay Goerlitz's attorneys' fees in the amount of one

hundred thirty-tw o thousand, nine hundred twenty-six dollars and

twenty-one cents ($132,926.25). The Civil Rights Act of 1964

provides that a "prevailing party" in a suit brought under Title8 42 U.S.C. § 706(k).

-14-

VII is entitled to reco ver her attorneys' fees and costs. 42

U.S.C. § 2000e-5(k). The award of attorneys' fees, nevertheless,

r ests within the discretion of the district court. 8 We will not

reverse an award of attorneys' fees unless the trial court abused

its discretion or based its award on clearly erroneous findings of

fact. J ohnston v. Harris County Flood Control Dist.

, 869 F.2d 1565

(5th Cir. 1989), cert. denied , 493 U.S. 1019, 110 S.Ct. 718, 107

L.Ed.2d 738 (1990).

The action before us was originally brought by the EEOC. It

asserted Goerlitz's rights only under Title VII of the Civil Rights

Act of 1964. All other claims asserted in this case were not part

of th e original suit. On October 29, 1991, more than six months

after the original suit was filed, Goerli tz, through her private

attorney, intervened, and added state law claims. As to each and

every claim added to this case by Goerlitz, the jury found in favor

of Gulf Coast Dodge. In short, the EEOC brought each and every

prevailing claim; Goerlitz brought each and every rejected claim.

We recognize, however, that after Goerlitz intervened in this

case, her private lawyer represented her not only on her losing

state law claims but also on claims under Title VII. Goerlitz

obtained a favorable judgment on her Title VII claims; in this

sense, she qualifies as a "prevailing plaintiff" under our9 "A typical formulation is that 'plaintiffs may be considered

"prevailing parties" for attorney's fees purposes if they succeed

on any significant issue in litigation which achieves some of the

benefit the parties sought in bringing su it.'" H ensley v.

Eckerhart , 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40

(1983)(quoting Nadeau v. Helgemoe , 581 F.2d 275, 278-79 (1st Cir.

1978)).

-15- "generous formulation" of the term. 9 Attorney fees, however, are

not necessarily automatic for prevailing parties, because "[i]n

some circumstances, even a plaintiff who formally 'prevails'

. . .

should receive no attorney's fees at all." F arrar v. Hobby

,

U.S. , 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992).

As we have earlier noted, the plaintiff was not the prevailing

party with respect to her state law claims. The plaintiff,

however, clearly was the prevailing party with respect to her Title

VII cla ims. As we have also noted, however, the plaintiff was

competently represented by the EEOC who initiated and prosecuted

all the Title VII claims with respect to which the plaintiff

preva iled. Notwithstanding the redundancy of Goerlitz's private

attorney, as far as the Title VII claims are concerned, she

nevertheless participated in the related discovery and in the

presentation of t he Title VII claims, and, obviously, made some

contribution to the Title VII victory Goerlitz won before the

district court. Our consideration of the district court's award of

$132,926.25 in attorneys' fees in comparison to that contribution,

however, convinces us that although the district court did not-16-

abuse its discretion in awarding some attorneys' fees, it s award

must on remand be trimmed back significantly.

When assessing the appropriateness of attorneys' fees, we must

recognize the well-settled principle that attorneys' fees must be

awarded only for those lawyer hours that are reasonably necessary

to adequately prosecute the case. C ity of Riverside v. Rivera

, 477

U.S. 561, 568, 106 S.Ct. 2686, 2691, 91 L.Ed.2d 466; Hensley , 461

U.S. at 434, 103 S.Ct. at 1939. Attorneys' fees must not be

awarded for attorney hours that are "excessive, redundant, or

otherwise unnecessary." H ensley

, 461 U.S. at 434, 103 S.Ct. at

1939-40. Title VII, furthermore, does not allow for the award of

any attorneys' fees requested, but only reasonable fees. C urtis v.

Bill Hanna Ford, Inc.

, 822 F.2d 549, 551 (5th Cir. 1987). Another

important con sideration is that once civil rights litigation

materially alters the legal relationship between the parties, "the

degree of the plaintiff's overall success goes to the

reasonableness of a fee award." Farrar , 113 S.Ct. at 574. There

is no windfall of attorneys' fees when the district court properly

c onsiders the relationship between the extent of the success and

the amount of the fee award. S ee id. at 575. Similarly, "the

district court should focus on the significance of the overall

relief obtained by the plaintiff in relation to the hours

reasonably expended in the litigation." R ivera

, 106 S.Ct. at 2691.

Here, we are faced with a somewhat unusual case. As discussed

above, in April 1991 the EEOC instituted this suit on behalf of the-17-

pla intiff. About two weeks later, Goerlitz's private attorneys

instituted a suit in state court based solely on state law claims.

After the state court abated the suit in response to the

defendant's motion, Goerlitz moved to intervene in this suit in

August 1991. The district court granted the motion to intervene in

October, allowing the plaintiff to pursue her numerous state law

claims, all arising from the same set of incidents. This

necessitated a week-long jury trial in January 1992, which not only

proved fruitless with respect to her state law claims, but extended

the trial far in excess of the time it otherwise would have taken

if the proceeding had been limited to the Title VII claims.

Standing alone, the simplicity of the EEOC case did not justify the

service of additional attorneys. The Title VII claims asserted in

the EEOC's suit were at all times identical to Goerlitz's Title VII

claims, and the EEOC's suit never embraced any other claims.

Moreover, because there is no suggestion of possible conflict

between the interests of the EEOC and those of the plaintiff, nor

any suggestion that the EEOC was lax in pursuing the Title VII

claims, there is little justification on any basis for additional

attorneys. In short, when the contribution of Goerlitz's counsel

is considered solely in the context of the Title V II claim, her

services were largely unnecessary . The district court, when

reviewing the amount of justifiable attorney fees, seems not to

have taken this very significant factor into consideration. It is

true, of course, that the plaintiff, who originally claimed 1075-18-

attorney hours on the entire case, deducted about 187 hours on

account of the failure of all her jury claims. This deduction left

868 hours of compensable time, which we view as quite unreasonable-

-almost one half a year when 2,000 billable hour s a year is

considered average--in this simple Title VII case involving a

single discharge in a case that ultimately should have taken no

more than three days to try. In this respect, we note that 390

hours are claimed in the month of January 1992, the time of the

trial, which were in large part fruitless hours for Goerlitz's

private counsel. On remand, therefore, it will be for the district

court to determine the extent to which Goerlitz's private counsel

was not redundant or unnecessary in the pretrial or trial of this

relatively simple Title VII case.

Additionally, the court erroneously concluded that the

plaintiffs should be granted an enhancement to the hourly rate. As

justification for the enhancement, the district court stated that

the case "required highly skilled counsel" and that Goerlitz needed

these attorneys to conduct a "complex factual investi gation,

including a large number of documents and depositions to rebut Gulf

Coast's defenses of inadequate performance and poor attitude." As

further justification for the enhanced award, the court noted that

Goerlitz had obtained "positive results on her Title VII claim, and

that in achieving this resul t, she had encountered `the

uncooperative behavior of defense counsel throughout pretrial

matters and trial preparation.'" These factors do not impress us-19-

as uncommon encounters of trial counsel, which would justify more

than usual hourly compensation; the fact that the case was complex,

involved a large number of documents, or recalcitrant counsel would

be compensated by the additional hours that these f actors would

have necessitated.

We therefore remand the case to the district court for

reconsideration of attorneys' fees. The district court must keep

foremost in its mind that Goerlitz succeeded only on her Title VII

claims with respect to which the EEOC was fully adequate to

prosecute. The district court must also remember that Goerlitz

lost on all of the claims brought by her private counsel, and that

the fact that she happened to win before the district judge on her

Title VII claims does not provide a windfall of compensation for

claims prosecuted, but lost.

C

Finally, we turn to address Gulf Coast's argu ment that the

district court erred by imposing sanctions on its attorney, Walter

Grimes. The appropriate standard of review in assessing the

district court's award of Rule 11 sanctions is the abuse of

discretion standard. T homas v. Capital Sec. Servs., Inc.

, 836 F.2d

866, 872 (5th Cir. 1988). The district court imposed these

sanctions because Grimes repeatedly failed to comply with F ED

. R.

C IV

. P. 62(d) and the applicable case law in filing a supersedeas

bond in the present action, and because Grimes made no "good faith

argument for the extension, modification, or reversal of existing1 0 First, the defense attorney filed the supersedeas bond prior

to appealing the judgment of the district c ourt. F E D

. R. C IV

. P.

62(d) specifically provides that a bond "may be given at or after

the time of filing the notice of appeal." Further, the amount of

the bond failed properly to cover costs as required under the law.

See Metz v. United States

, 130 F.R.D. 458 , 459 (D. Kan. 1990);

Avirgan v. Hull

, 125 F.R.D. 185, 188 (S.D. Fla. 1989) (citing

Poplar Grove Planting and Refining Co., Inc . v. Bache Halsey

Stuart, Inc. , 600 F.2d 1189, 1191 (5th Cir. 1979)).

1 1 Specifical ly, Mr. Grimes signed the bond as "attorney-infact," but there was no evidence that Mr. Grimes had the power to

commit Gulf Coast to pay the bond. At a hearing on the matter, the

district judge ruled that the bond would be considered insufficient

until the president of Gulf Coast signed the bond.

-20- law." F ED

. R. C IV

. P. 11. It imposed sanctions in the amount of

the "reasonable expenses incu rred by Goerlitz in connection with

the defective supersedeas bond."

It is clear that under Rule 11, an attorney has the obligation

to conduct "a reasonable inquiry into the law such that the

document [that he signs] embodies existing legal principles." Yet,

it is equally clear that when Goerlitz attempted to enforce the

judgment agai nst Gulf Coast, Grimes' response was to file an

incomplete, insufficient supersedeas bond. 10 Acting to protect the

interest of her client, Goerlitz's attorney filed an opposition to

the motion to approve the supersedeas bond, pointing out the

defects in the bond, and requesting sanctions against Grimes.

Grimes then filed an amended supe rsedeas bond that corrected

several of the problems with his original bond, but which still

failed to give an adequate assurance that the bond would be

effective. 11-21-

Given that Grimes signed a supersedeas bond that clearly

failed to comport with the requirements called for by law, and

given that Goerlitz's counsel acted reasonably in see king to

protect the interests of her client, we cannot say that the

district court abused its discretion in imposing sanctions against

Grimes in the amount ordered. Accordingly, the order for sanctions

is affirmed.

IV

Having found that Gulf Coast waived any right that it might

have had to a binding jury verdict for its equitable claims, and

having found that the district court's findings in favor of

Goerlitz on her Title VII claims were not clearly erroneous, we

AFFIRM the Title VII judgment of the district court. Further, we

AFFIRM the district court's rulings denying Goerlitz's JNOV and new

trial motions. We also AFFIRM the imposition of sanctions against

Gulf Coast's attorney, Walter Grimes. We REVERSE, however, the

district court's award of attorneys' fees to Goerlitz bec ause we

find that the district court abused its discretion in determining

the amount of fees to be awarded. We therefore REMAND to the

district court for a recalculation of Goerlitz's attorneys' fees

consistent with the observations of this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.E. GRADY JOLLY, Circuit Judge, concurring in part and dissenting in

part.

Because I would hold that no attorneys' fees are warranted in

this case, I respectfully dissent from Part III.B of the opinion.

I concur, however, in all other parts of the opinion.

Goerlitz's private attorneys intervened in this case only to

prosecute her state law claims; that is, the claims that the EEOC

was not st atutorily authorized to pursue on behalf of Goerlitz.

Each and every state law claim was rejected. There is nothing in

the record to suggest that the EEOC attorneys were not perfectly

capable of handling the Title VII claims. Moreover, these were the

only ones on which she prevailed. In my view, private attorneys

were wholly and completely redundant and unnecessary, and payment

of any fees t o them constitutes a windfall. I adhere to the

position that I earlier expressed, when I wrote for the majority,

that "--absent unusual ex ceptions not here present--that it is

patently 'redundant' and 'unnecessary' for a private atto rney to

participate i n the litigation of identical claims that are

s imultaneously being pursued by the government-paid attorneys of

the EEOC." Clear Lake Dodge , 25 F.3d at 272.

For these reasons, I respectfully dissent.