UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PERRY R. SHASTEEN,

Plaintiff-Appellant,

v.

No. 96-2024

OLYMPUS GYM, INCORPORATED; SEVEN

CORNERS HEALTH CLUB,

INCORPORATED; DAVID WEBER,

Defendants-Appellees.

PERRY R. SHASTEEN,

Plaintiff-Appellee,

v.

No. 96-2093

OLYMPUS GYM, INCORPORATED; SEVEN

CORNERS HEALTH CLUB,

INCORPORATED; DAVID WEBER,

Defendants-Appellants.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA 95-1382-A)

Argued: July 8, 1997

Decided: August 22, 1997

Before HAMILTON and LUTTIG, Circuit Judges, and

G. Ross ANDERSON, Jr., United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed in part, reversed in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

ARGUED: John Michael Bredehoft, CHARLSON & BREDEHOFT,

P.C., Reston, Virginia, for Appellant. John Paul Markovs, ADAMS,

PORTER & RADIGAN, LTD., McLean, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

This is an appeal from an order awarding two-sevenths of the

requested amount of attorneys' fees and costs under the Americans

with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12001 et seq. We

reverse and remand in part for further proceedings because the District Court used an impermissible fixed percentage mathematical

approach comparing the total number of claims in relation to those

claims that prevailed. Also, we reverse in part because Weber was not

a party to the ADA claims and therefore should not be held liable for

any attorneys' fees or nontaxable costs. Thus, we affirm in part,

reverse in part and remand for further proceedings consistent with this

opinion.

This action alleged seven causes of action. Two claims were under

the employment provisions of the ADA and the five remaining claims

under Virginia law were for wrongful termination, assault, battery,

interference with contract, and intentional infliction of emotional distress. The plaintiff claims that while he was employed as the manager

of the Seven Corners Health Club, which is owned by Olympus Gym,

Inc. and David Weber, he had two disabilities and that the defendants

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refused to accommodate either disability. The plaintiff claims to suffer from asthma, and further claims that in June of 1989 his condition

was complicated by the contraction of a lung infection. Plaintiff

claimed that both the asthma and the infection are disabilities. The

complaint also alleged that Defendant Weber insulted, spat upon,

punched, and generally harassed the plaintiff on many occasions.

The defendants made an offer of judgment for $50,000.00 as to all

seven counts pursuant to Fed. R. Civ. P. 68. Plaintiff accepted and

judgment was entered against the defendants on February 29, 1996.

Plaintiff relied on Section 2000e-5(k) of Title VII and moved for

attorneys' fees of $16,118.50, taxable costs of $135 and non-taxable

costs of $59.63.

On May 20, 1996, the District Court entered an Order awarding the

plaintiff two-sevenths of his requested fees, costs, and nontaxable

expenses. The plaintiff filed a timely motion under Fed. R. Civ. P.

59(e) for reconsideration. This motion was denied without a hearing

on June 21, 1996. This appeal followed.

The District Court correctly determined that the prevailing plaintiff

is entitled to an award of attorneys' fees and costs. Federal courts routinely award fees to prevailing plaintiffs in civil rights and discrimination cases. The fact that the plaintiff accepted a Fed. R. Civ. P. 68

settlement makes the plaintiff a prevailing party on his ADA claims

and, as such, he is entitled to an award of attorneys' fees and costs.

Marek v. Chesny, 473 U.S. 1 (1985); Marryshow v. Flynn, 986 F.2d

689, 691-92 (4th Cir. 1993). The parties in this case could have stipulated that the $50,000 settlement figure included accrued attorneys'

fees or otherwise settled the issue of attorneys' fees and costs. They

did not, and the plaintiff is entitled to an award of attorneys' fees and

costs as a prevailing party.

Guidance for setting the amount of attorneys' fees is provided by

the Supreme Court's opinion in Blum v. Stenson , 465 U.S. 886

(1984). The substantial issue that this Court must address is whether

the District Court used a permissible legal standard in reducing the

amount of fees and costs by five-sevenths. This Court reviews the

District Court's determination of attorney's fees for abuse of discretion. See Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986); Spell v.

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McDaniel, 852 F.2d 762 (4th Cir. 1988); Johnson v. Hugo's

Skateway, 974 F.2d 1408 (4th Cir. 1992).

The only factor which is pertinent to this appeal is whether the five

common-law claims asserted in the original complaint were distinct

in all respects from the two ADA claims. The District Court determined, "[t]here is no significant overlap between the state law and

ADA counts of the complaint." It was on this determination that the

lower court denied five-sevenths of the requested fees and costs.

The district court determined that Shasteen's two ADA claims

were unrelated to his five state claims. Relying on the Supreme

Court's decision in Hensley v. Eckerhart, 461 U.S. 424 (1983), in

which the Court held that no fees should be awarded for time spent

on unsuccessful claims that were unrelated to successful ones, the district court ruled that Shasteen should not be compensated for the time

spent pursuing the five state claims. The methodology used by the

district court in deciding the fee and cost issue, the ratio of successful

claims to unsuccessful claims, has been rejected by the Supreme

Court. "We agree with the District Court's rejection of a mathematical

approach comparing the total number of issues in the case with those

actually prevailed upon.... Such a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors. Nor

is it necessarily significant that a prevailing plaintiff did not receive

all of the relief requested." Hensley at 435 n.11 (1983).

The district court's award of attorneys' fees must therefore be

vacated and this portion of the case remanded for a recalculation of

the amount of attorneys' fees owed Shasteen.

Second, because Weber was not named as a defendant to any of the

ADA claims, he cannot be held liable for any award of attorneys' fees

or nontaxable costs in this case. Further, the Appellant's Petition and

Memorandum do not specifically claim that Weber should be held liable for any such fees. Weber is liable for taxable costs under 28

U.S.C. § 1920.

In sum, we affirm the award of attorneys' fees and costs to the

plaintiff.* However, we reverse the district court's award against

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*The defendants also cross-appealed, claiming that the district court

erred when it granted Shasteen any attorneys' fees or costs. According

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Weber as to attorneys' fees and nontaxable costs only. While we disagree with the formula used by the district court, we specifically make

no finding as to the proper amount of fees. We remand in part for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED 

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to defendants, in an argument not raised before the district court, the

$50,000 settlement included attorneys' fees and costs for Shasteen.

Because we conclude, for the reasons stated herein, that Shasteen is entitled to attorneys' fees and costs as a prevailing plaintiff and that the

$50,000 did not include attorneys' fees and costs, we reject the defendants' argument as stated in their cross-appeal.

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