United States Court of Appeals,

Eleventh Circuit.

No. 93-8791.

Alicia CABAN-WHEELER, Plaintiff-Appellee-Cross-Appellant,

v.

William ELSEA, M.D., Fulton County Health Department, et al.,

Fulton County Personnel Board, Dr. Robert H. Brisbane, Ellinor Dye;

Herbert Mabry and Charles Cherry, Defendants-Appellants-CrossAppellees.

Jan. 4, 1996.

Appeals from the United States District Court for the Northern

District of Georgia. (No. 1:86-CV-1919-HTW), Horace T. Ward, Judge.

Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit

Judge.

FAY, Senior Circuit Judge:

This appeal arises from a jury verdict in favor of the

plaintiff under 42 U.S.C. § 1983. The cross-appeal arises from a

verdict for the defendants after a bench trial on a claim for

relief under Title VII of the Equal Employment Opportunity Act, 42

U.S.C. Sec. 2000e et. seq. The plaintiff also cross-appeals the

amount the District Court awarded for attorney's fees under the

successful § 1983 claim. We AFFIRM the District Court's rulings on

both claims, and REVERSE and REMAND only for a recalculation of

attorney's fees.

I. BACKGROUND

Dr. Caban-Wheeler, a White Hispanic female, was fired by the

Fulton County Health Department. She then brought a civil rights

action against various Fulton County departments and employees

based on national origin or race discrimination, and violation of

her due process rights. The District Court ruled for the
defendants on all claims, and Ms. Caban-Wheeler appealed. This

Court reversed and remanded, holding that the "numerous suspicious

discriminatory circumstances in this case demand a retrial and

re-examination of all issues." Caban-Wheeler v. Elsea, 904 F.2d

1549, 1558 (11th Cir.1990). On remand, the § 1983 claim was tried

to a jury, and afterward the Title VII claim was tried by the

court. The jury found for Caban-Wheeler on her procedural due

process claim, and awarded $100,000 in punitive damages. The jury

awarded no compensatory or nominal damages, but the court later

ordered that one dollar in nominal damages be added to the verdict.

The judge found for the defendants on the Title VII claim.

The defendants appeal the jury verdict, raising seven issues:

1) whether plaintiff's claim fails to rise to the level of a

procedural due process violation, 2) whether the District Court

erred in allowing plaintiff to amend her complaint to add a claim

under § 1983, 3) whether the District Court erred in altering the

judgment to add nominal damages, 4) whether the District Court

erred in awarding attorney's fees under 42 U.S.C. § 1988, 5)

whether the District Court erred in ruling that Robert Brisbane,

Herbert Mabry, Ellinor Dye, and Charles Cherry were not entitled to

judicial immunity, 6) whether William Elsea, Robert Brisbane,

Ellinor Dye, Herbert Mabry, and Charles Cherry are entitled to

qualified immunity, and 7) whether the District Court erred in

ruling that the plaintiff presented sufficient evidence for the

jury to award punitive damages.

The plaintiff cross-appealed, raising four issues: 1) whether

the District Court in the Title VII case improperly discounted
Plaintiff's direct evidence of discrimination, 2) whether the

District Court in the Title VII case adequately complied with this

Court's mandate from the prior appeal and adequately deferred to

the jury's findings from the § 1983 claim, 3) whether the District

Court erred in not allowing Caban-Wheeler to present evidence

regarding the race of her replacement, and 4) whether the District

Court erred in calculating attorney's fees.

II. ANALYSIS

A. Defendant's Issues on Appeal

i. the Procedural Due Process Claim

 In McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994) (en banc),

cert. denied, --- U.S. ----, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995),

the Eleventh Circuit Court of Appeals held that even where an

employee suffers a procedural deprivation during a termination

hearing, that employee has not suffered a violation of her

procedural due process rights unless the state refuses to "make

available a means to remedy the deprivation." Id. at 1563. The

defendants in this case argue that Caban-Wheeler did not take her

claim to state court, and thus under McKinney, she suffered no

violation of her procedural due process rights; the state of

Georgia provides an available and adequate state law remedy for the

alleged wrongful termination procedure.

 It may be true that under McKinney Caban-Wheeler suffered no

violation of her procedural due process rights; however, the

defendants failed to raise this issue in the District Court. While

the decision in McKinney involved a change in the law that is to be

applied retroactively, Id. at 1566, appellate courts generally will
 1

The facts of this case are more fully set out in the

previous appeal, Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th

Cir.1990). 

not consider an issue first raised on appeal, FDIC v. Verex

Assurance, Inc., 3 F.3d 391, 395 (11th Cir.1993).

In Narey v. Dean, 32 F.3d 1521 (11th Cir.1994), the court

chose to exercise its discretion to consider the McKinney issue

even though the defendants failed to raise that issue until after

trial. The court in Narey chose to exercise its discretion because

after McKinney the proper resolution of the issue was beyond any

doubt. Id. at 1527. We choose not to exercise our discretion to

hear an issue first raised on appeal because we believe the jury

verdict did not result in a miscarriage of justice in light of the

numerous suspicious discriminatory circumstances in this case and

because the availability of a state court remedy was not developed

in the trial court.1

ii. the Amended Complaint

 When Caban-Wheeler moved to amend her complaint to add a §

1983 claim for violation of her due process rights, the defendants

argued that the motion should be denied because the statute of

limitations for the § 1983 claim had already run. However, under

Rule 15 of the Federal Rules of Civil Procedure, the decision

whether to allow a plaintiff to amend the complaint is separate

from, and based upon a different standard than, the decision

whether the new claim relates back to the original complaint.

After the District Court allowed Caban-Wheeler to amend the

complaint, the defendants did not move to dismiss the complaint and

did not plead in their amended answer that the statute of
 2

The pre-trial order for both the first and the second

trials contained an assertion by the defendants that they had

been "severely prejudiced" by the District Court's order allowing

the plaintiff to amend the complaint "to include a claim under 42

U.S.C.A. § 1983 that, otherwise, would have been barred by the

statute of limitations under Georgia law." Even if this language

could be read as raising the affirmative defense that the statute

of limitations had run on the § 1983 claim, the defendants

produced no evidence at trial regarding the statute of

limitations and did not move for a ruling on that affirmative

defense. 

limitations had run on the § 1983 claim.2 Thus the District Court

never ruled on whether the new claim related back to the original

complaint under Rule 15(c) of the Federal Rules of Civil Procedure

or on whether the statute of limitations barred the claim. By

never raising this affirmative defense in the District Court, the

defendants waived it.

iii. Nominal Damages

 The defendants contend that it was error for the District

Court to amend the verdict to reflect one dollar in nominal damages

after the jury found no actual damages, and that the punitive

damages award cannot stand where no nominal or actual damages were

found. According to the defendants, the Supreme Court in Carey v.

Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) and

Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494

(1992) merely held that a procedural due process violation is

actionable for nominal damages even absent proof of actual damages.

Thus in this case, where the jury awarded no actual damages and

where Caban-Wheeler requested no jury instruction regarding nominal

damages, she is not entitled to nominal damages.

We read the Supreme Court precedent differently. In Farrar,

the Court stated, "Carey obligates a court to award nominal damages
when a plaintiff establishes the violation of his right to

procedural due process but cannot prove actual injury." Farrar,

506 U.S. at ----, 113 S.Ct. at 573. In this case, the jury

expressly found that Caban-Wheeler's procedural due process rights

were violated, and so the District Court did not err in awarding

nominal damages.

iv. Was Caban-Wheel a Prevailing Party?

 Because Caban-Wheeler obtained a valid judgment for nominal

damages as well as punitive damages, she was a prevailing party for

purposes of 42 U.S.C. § 1988. See Farrar, at ----, 113 S.Ct. at

573. Nominal damages alone are sufficient. Id.

v. Judicial Immunity

 Next, the defendants argue that the District Court erred in

ruling that Robert Brisbane, Herbert Mabry, Ellinor Dye, and

Charles Cherry had waived any defense of judicial immunity. This

case was first filed in 1986. The defendants failed to raise this

issue in the first trial, on the first appeal, and in the second

trial on remand. The judicial immunity defense was raised for the

first time after the jury verdict in a renewed motion for judgment

as a matter of law. Under Rule 50(b) of the Federal Rules of Civil

Procedure, such a motion may be used to renew consideration of

issues initially raised in a pre-verdict motion for judgment as a

matter of law. Because this defense was not raised in such a

motion for judgment as a matter of law, it would have been improper

for the District Court to consider it in the renewed motion for

judgment as a matter of law. Moreover, because the issue was not

raised during trial or at any time before, the issue was waived.
See FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir.1993);

Narey v. Dean, 32 F.3d 1521, 1526 (11th Cir.1994).

vi. Qualified Immunity

 The defendants also argue that William Elsea, Robert

Brisbane, Ellinor Dye, Herbert Mabry, and Charles Cherry are

entitled to qualified immunity. This Court has appellate

jurisdiction to review District Court decisions for error. See 28

U.S.C. § 1291; FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395

(11th Cir.1993). Because this issue was not raised in the District

Court, the District Court committed no error.

vii. Punitive Damages

 Last, the defendants argue that the District Court erred in

ruling that there was sufficient evidence to authorize the jury's

award of punitive damages. This issue was raised in a renewed

motion for judgment as a matter of law, and so we must:

consider all the evidence, and the inferences drawn therefrom,

in the light most favorable to the nonmoving party. If the

facts and inferences point overwhelmingly in favor of one

party, such that reasonable people could not arrive at a

contrary [conclusion], then the motion was properly granted.

Conversely, if there is substantial evidence opposed to the

motion such that reasonable people, in the exercise of

impartial judgment, might reach differing conclusions, then

such a motion was due to be denied....

Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989).

The defendants contend that Caban-Wheeler failed to produce

any evidence of malicious intent sufficient to support an award of

punitive damages. The District Court found that Caban-Wheeler

presented sufficient evidence of such intent so that a jury could

conclude that punitive damages were warranted. We agree. CabanWheeler presented evidence from which a reasonable jury could
 3

The jury instructions, which were not challenged, required

a finding of malicious, wanton, or oppressive conduct in order to

award punitive damages. 

conclude, first, that the defendants maliciously, wantonly, or

oppressively3 quashed subpoenas at the review hearing, and second,

that portions of the tape recording from the hearing were

maliciously, wantonly, or oppressively erased.

B. Plaintiff's Issues on Cross-Appeal

i. Direct Evidence of Discrimination on the Title VII Claim

 Caban-Wheeler argues that the District Court improperly

discounted her direct evidence of discrimination. Such evidence,

if credited by the court, may necessitate shifting the burden of

proof to the defendants to show that the same decision regarding

Caban-Wheeler's termination would have been made even if race was

not an issue. Caban-Wheeler, 904 F.2d at 1555.

Caban-Wheeler testified at trial that Defendant Ricks told her

that he wanted a Black person in Caban-Wheeler's job. The District

Court did not credit this testimony for two reasons: 1) Ricks

denied the allegation, and 2) this allegation was absent from

Caban-Wheeler's charge of discrimination filed with the Equal

Employment Opportunity Commission.

In fact, however, Caban-Wheeler did include a similar

allegation in her charge to the EEOC: "... Mr. Ricks told me he

didn't think someone like me should be Director of the Project, he

wanted a Black person as Director."

The issue is complicated by the fact that when the defendants

introduced the discrimination charge into evidence, Caban-Wheeler

testified that while she had included such an allegation in her
charge, that allegation was not reflected in the defendants'

exhibit, which was just a summary prepared by the EEOC. In fact,

the exhibit was the charge of discrimination, and did include her

allegation that Mr. Ricks wanted a Black person as Director. While

Ms. Caban-Wheeler's mistake complicated the issue, the District

Court's finding that Caban-Wheeler failed to include such an

allegation in her charge to the EEOC was still clearly erroneous.

 However, just because Caban-Wheeler made such an allegation

to the EEOC does not mean that it was in fact true. The District

Court failed to credit her testimony that Mr. Ricks told her he

wanted a Black person as Director for another reason: Mr. Ricks

denied that he made such a statement. Both Mr. Ricks and Ms.

Caban-Wheeler testified at length and the District Court had the

opportunity to evaluate the credibility of the witnesses. "When

there are two permissible views of the evidence, the factfinder's

choice between them cannot be clearly erroneous." Anderson v. City

of Bessemer, North Carolina, 470 U.S. 564, 574, 105 S.Ct. 1504,

1511, 84 L.Ed.2d 518 (1985). Findings based on the credibility of

witnesses demand "... even greater deference to the trial court's

findings; for only the trial judge can be aware of the variations

in demeanor and tone of voice that bear so heavily on the

listener's understanding of and belief in what is said." Id., 470

U.S. at 575, 105 S.Ct. at 1512.

We are compelled to conclude that the District Court's

decision not to credit Caban-Wheeler's testimony about Mr. Ricks is

not clearly erroneous. That was the only direct evidence of

discrimination, and so the District Court did not err in not
 4

The first issue was discussed earlier in this opinion; the

District Court credited Mr. Ricks' testimony rather than Ms.

Caban-Wheeler's testimony. The District Court disposed of the

second issue by finding that Ms. Caban-Wheeler's explanation as

to why she did not formally sign-up participants in the program

was insufficient. The signed forms may not have been important

to Caban-Wheeler, but they were important to Ms. Hill, who was

Ms. Caban-Wheeler's supervisor. The District Court concluded

that this, along with Caban-Wheeler's failure to prepare a

requested document until she had been suspended, was sufficient

evidence of insubordination. Third, the District Court rejected

Caban-Wheeler's contention that evidence had been fabricated to

shifting the burden of proof to the defendants to show that the

same decision would have been made in the absence of

discrimination.

ii. Did the District Court comply with this Court's prior mandate

and with the jury findings from the § 1983 trial?

Caban-Wheeler argues next that the District Court did not

comply with this Court's decision in the first appeal in this case.

This Court, in Caban-Wheeler v. Elsea, 904 F.2d 1549 (11th

Cir.1990), remanded for a new trial, with the following mandates:

1) the court must address Caban-Wheeler's testimony that Ricks told

her he wanted a Black person for the job, Id. at 1555; 2) the

court must address Caban-Wheeler's seemingly plausible explanation

as to why her actions did not involve insubordination, Id. at 1555-

56; 3) the court must address Melba Hill's possible attempts to

fabricate evidence to create the appearance of progressive

discipline, Id. at 1556; and 4) the court must address the fact

that Caban-Wheeler's termination occurred a mere five days after

the hearing following her suspension and the fact that certain

testimony from that hearing was erased.

The District Court addressed each of these issues in its

Findings of Fact.4 Just because the court ruled against Caban-
create evidence of progressive discipline; the memorandum was

simply dated incorrectly. The court found that there was no

evidence, other than Caban-Wheeler's conjecture, that the

evidence was fabricated, and that the concerns expressed in the

memorandum were valid. Last, the court found that the erasure of

the tape was accidental, that Caban-Wheeler's complaint about the

hearing more properly went to her procedural due process claim,

and that there was no allegation or evidence that there was a

casual connection between her decision to appeal her suspension

and her termination. 

 5Caban-Wheeler's motion to amend her complaint to seek a

jury trial on the Title VII claim under the Civil Rights Act of

1991 was denied; the District Court ruled that the Act is not

retroactive. See also Baynes v. AT & T Technologies, Inc., 976

F.2d 1370 (11th Cir.1992). 

Wheeler after considering those issues does not mean that it

violated this Court's mandate. The District Court's factual

findings on these matters were not clearly erroneous.

 Caban-Wheeler also argues that the District Court was bound

by any determinations the jury made regarding the § 1983 claim, and

that the court did not properly abide by the jury findings when

deciding the Title VII claim. Specifically, Caban-Wheeler argues

that the jury awarded punitive damages for her procedural due

process claim, and so must have found malicious intent.

 "When 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." Lincoln v. Board of Regents of

the University System of Georgia, 697 F.2d 928, 934, cert. denied,

464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983). A legal action

under § 1983 entails the right to a jury trial while an equitable

action under Title VII5

 does not. Id. Thus the judge in this

case, when deciding the Title VII claim, was bound by the jury's
 6

This jury instruction was not challenged, and we make no

comment on the correctness of the wording in the charge. 

findings on the § 1983 due process claims.

However, the judge's findings on the Title VII claim did not

directly conflict with the jury's findings on the procedural due

process claim. The jury instructions in this case authorized the

jury to award punitive damages if the jurors found that the

defendants had acted maliciously, wantonly, or oppressively.6 The

jury instructions defined a wanton act as an act "done in reckless

or callous disregard of, or indifference to, the rights of the

injured person." Thus the jury may have found that the defendants

acted recklessly in regard to Caban-Wheeler's procedural due

process rights, but did not intentionally discriminate based on her

race, sex, or national origin, as required by Title VII. The

jury's finding that Caban-Wheeler's substantive due process rights

were not violated supports this possibility.

iii. Evidence of the Race of Caban-Wheeler's Replacement

Caban-Wheeler next argues that the District Court erred by not

allowing her to present evidence of racial motive to the jury. The

only action by the District Court in this regard was the order

granting the defendants' motion to bar Caban-Wheeler from

introducing evidence of the race of Caban-Wheeler's replacement,

Ms. Elleen Yancey, and of Ms. Yancey's subsequent promotions.

However, Ms. Yancey testified at trial, and so her race was most

likely evident. In addition, Caban-Wheeler's counsel cross

examined Yancey regarding her subsequent promotions.

iv. Calculating Attorney's Fees
 Last, Caban-Wheeler argues that the District Court erred in

calculating the amount she is entitled to in attorney's fees. The

District Court found plaintiff's requested rate of two hundred

dollars an hour to be reasonable. The court then ruled that the

"96.3 hours spent through the first trial and appeal were

reasonable," but the "additional 291.75 hours (excluding specific

hours spent on the Title VII claim)" were not reasonable because

those hours include time spent on trial preparation or in trial,

and so reflect time spent on two distinct and unsuccessful claims.

In addition, the court found it unreasonable that the attorneys

spent seventy three hours reviewing trial transcripts and trial

exhibits. For those reasons, the court ruled that a total of

196.30 hours were reasonably spent on this case.

Caban-Wheeler argues that she had already excluded time spent

on the Title VII claim, and so the trial court double deducted

those hours; moreover, no time should be deducted for the

unsuccessful substantive due process claim because she had already

deducted over two hundred hours from the total time spent on the

due process issues and because she would have spent just as much

time preparing for the successful procedural due process claim even

without the substantive due process claim. In addition, CabanWheeler argues that the court simply miscounted how much time was

spent on the first trial and first appeal; instead of 96.3,

counsel spent 309.75. Lastly, Caban-Wheeler disputes the court's

ruling that only one hundred hours was reasonable for time spent

after the successful appeal, especially considering that the second

trial itself took seventy-three hours.
 7

Caban-Wheeler claims she already deducted the time spent on

the Title VII claim, but as the District Court noted, the time

spent preparing for the second trial and the time spent during

the second trial necessarily include time spent on the Title VII

claim. 

 8Caban-Wheeler's motion for attorney's fees reflects several

mathematical errors. 

The District Court may have double deducted the Title VII

time7 and may have miscounted how much time was spent on the first

trial and the first appeal,8

 so we remand for a more thorough

examination of these issues.

III. CONCLUSION

We AFFIRM the District Court's rulings on all issues except

for the calculation of attorney's fees, and REVERSE and REMAND for

further proceedings only in that regard.