F I L E D

United States Court of Appeals

Tenth Circuit

JAN 29 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAULA BALLARD, 

Plaintiff-Appellee,

v. Nos. 99-7132 & 00-7004

MUSKOGEE REGIONAL MEDICAL

CENTER,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 99-CV-21-P)

Submitted on the briefs:

Terry Todd, Leslie C. Weeks, and Elizabeth Hall of Rodolf & Todd, Tulsa,

Oklahoma, for Defendant-Appellant.

James G. Wilcoxen of Wilcoxen & Wilcoxen, Muskogee, Oklahoma, and Nathan

H. Young, III, of Tahlequah, Oklahoma, for Plaintiff-Appellee.

Before BRORBY , McKAY , and KELLY , Circuit Judges.

McKAY , Circuit Judge.
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I. Introduction

Plaintiff, a psychological technician at Defendant Muskogee Regional

Medical Center (an entity of the city of Muskogee), brought an action against

Defendant under 42 U.S.C. § 1983 for First Amendment retaliation. Plaintiff

claimed that she was terminated because she notified the County Health

Department regarding the poor condition of a patient that Defendant had received

from a referring facility. Defendant claimed that Plaintiff was terminated because

of her poor work performance, including misrepresenting herself as a nurse to

others and encouraging a known suicidal patient to jump out of a window. At the

close of all evidence, Defendant moved for judgment as a matter of law. The

jury, answering special interrogatories, found that (1) Plaintiff’s speech was a

substantial or motivating factor in her termination and (2) she would have been

terminated absent her exercise of speech. The jury further advised that she be

awarded $8,150 in front pay damages. The district court denied Defendant’s

motion for judgment as a matter of law and awarded Plaintiff $8,150 in front pay. 

The court also awarded Plaintiff attorney fees under 42 U.S.C. § 1988(b). We

exercise jurisdiction pursuant to 28 U.S.C. § 1291.

Defendant contends that the district court’s denial of its motion for

judgment as a matter of law was error and requires reversal. Defendant further

argues that awards of front pay and attorney fees should be set aside.
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II. Free Speech Retaliation

We review de novo a district court’s disposition of a motion for judgment

as a matter of law, applying the same standard as the district court. Such a

judgment is warranted only if the evidence points but one way and is susceptible

to no reasonable inferences supporting the party opposing the motion. See Baty

v. Willamette Indus., Inc. , 172 F.3d 1232, 1241 (10th Cir. 1999) (quotations and

citations omitted).

A trio of Supreme Court decisions fashions the four-step test that guides

our inquiry. See Connick v. Meyers , 461 U.S. 138 (1983); Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle , 429 U.S. 274 (1977); Pickering v. Bd. of Educ. , 391

U.S. 563 (1968) . For a public employee to prevail on a First Amendment

retaliation claim against her employer, the employee must prove: (1) the

employee’s speech involved a matter of public concern, see Connick , 461 U.S. at

146; (2) the employee’s interest “in commenting upon matters of public concern”

is greater than the interest of the public employer “in promoting the efficiency of

the public services it performs through its employees,” Pickering , 391 U.S. at

568; and (3) the speech was a “substantial factor” or a “motivating factor” in the

adverse employment decision, Mt. Healthy , 429 U.S. at 287. See also Dill v. City

of Edmond , 155 F.3d 1193, 1201-02 (10th Cir. 1998); Gardetto v. Mason , 100

F.3d 803, 811 (10th Cir. 1996). Finally, if the employee meets the requirements
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of these three prongs, the burden then shifts to the employer to show “by a

preponderance of the evidence that it would have reached the same decision . . . 

even in the absence of the protected conduct.” Mt. Healthy , 429 U.S. at 287. 

The Court explained the purpose of the fourth step of the inquiry: 

A borderline or marginal candidate . . . ought not to be able, by

engaging in [constitutionally protected] conduct, to prevent his

employer from assessing his performance record and reaching a

decision not to rehire on the basis of that record, simply because the

protected conduct makes the employer more certain of the

correctness of its decision.

Mt. Healthy , 429 U.S. at 286. 

In the instant action, Defendant demonstrated that Plaintiff’s termination

would have occurred solely as a result of her poor performance at the hospital. 

The district court noted: “The verdict form . . . reflects the jury’s finding that

Defendant would have terminated Plaintiff even in the absence of the exercise of

her right to free speech.” (Br. Aplnt., App. A). Despite this finding, however,

the court denied Defendant’s motion for judgment as a matter of law. The only

explanation offered by the court was that the jury’s finding “does not negate the

constitutional violation which occurred, and according to the Civil Rights Act of

1991, . . . merely affects the Plaintiff’s damages.” (Br. Aplnt., App. A).

The district court’s determination is contrary to established caselaw. The

public employer’s “anyway” defense—if established by a preponderance of the

evidence—acts as an absolute bar to liability, not merely a factor in awarding
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damages. The Supreme Court has said that in First Amendment retaliation

actions, “the government can escape liability by showing that it would have taken

the same action even in the absence of the protected conduct.” Bd. of County

Comm’rs, Wabaunsee County, Kan. v. Umbehr , 518 U.S. 668, 675 (1996)

(emphasis added) (citing Mt. Healthy , 429 U.S. at 287). We have also stated that

“defendants would be relieved from liability if they can establish that they would

have reached the same decision even in the absence of plaintiff’s speech.” Copp

v. Unified Sch. Dist. No. 501 , 882 F.2d 1547, 1554 (10th Cir. 1989) (emphasis

added). 

In this case, the jury specifically found that “Defendant would have

terminated Plaintiff even in the absence of the exercise of her right to free

speech.” (Br. Aplnt., App. A). Thus, Defendant met its burden and is relieved

from liability in terminating Plaintiff. 

III. Front Pay Awards

Defendant further asserts that the district court erred in awarding Plaintiff

$8,150 in front pay. An award of front pay for claims under § 1983 is an

equitable remedy; thus, the district court has discretion to decide whether such an

award is appropriate. See Mason v. Okla. Tpk. Auth. , 115 F.3d 1442, 1458 (10th

Cir. 1997) (citing Starrett v. Wadley , 876 F.2d 808, 824 (10th Cir. 1989)). “That
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discretion, however, should be measured against an anti-discrimination statute’s

purpose to make the plaintiffs ‘whole.’” Davoll v. Webb , 194 F.3d 1116, 1143

(10th Cir. 1999) (citing Carter v. Sedgwick County, Kan. , 36 F.3d 952, 957 (10th

Cir.1994), and Pitre v. W. Elec. Co. , 975 F.2d 700, 704 (10th Cir.1992)). We

thus review the court’s award of front pay for an abuse of discretion. See Mason ,

115 F.3d at 1458.

As set forth above, the district court erred in holding Defendant liable

despite the jury finding that Defendant had proven its “anyway” defense. In

addition, the court abused its discretion in awarding equitable damages to

Plaintiff despite Defendant’s inculpability. Plaintiff did not need to be made

“whole” because Defendant had caused no harm, according to the jury verdict. It

is impertinent that the jury advised an award of front pay, since such

determinations are made solely by the court. See McCue v. Kan. Dep’t of Human

Res. , 165 F.3d 784, 791 (10th Cir. 1999). 

We have previously adopted the reasoning that front pay can be refused in

part when the fact finder determines that the employee “would have been

legitimately laid off sometime before trial.” Dalal v. Alliant TechSystems, Inc. ,

182 F.3d 757, 759 n.2 (10th Cir. 1999). The Supreme Court has even held that

evidence of employee wrongdoing discovered by an employer after discharge and

sufficient for termination renders reinstatement or front pay “inequitable and
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pointless.” McKennon v. Nashville Banner Publ’g Co. , 513 U.S. 352, 361-62

(1995); see also Medlock v. Ortho Biotech, Inc. , 164 F.3d 545, 554-55 (10th Cir.

1999). Wrongdoing known to the employer before termination and found by the

jury should have no less an effect. Thus, Defendant is not liable to Plaintiff for

front pay. 

IV. Attorney Fees Under § 1988(b)

Defendant also challenges the district court’s award of attorney fees to

Plaintiff pursuant to 42 U.S.C. § 1988(b). Defendant contends that Plaintiff was

not the “prevailing party” in this litigation and therefore is not entitled to an

award of attorney fees under § 1988(b). We review a district court's decision to

award or deny attorney's fees for an abuse of discretion. See Withiam v. Baptist

Health Care of Okla., Inc. , 98 F.3d 581, 584 (10th Cir. 1996). “‘Although the

ultimate decision to award fees rests within the district court's discretion, any

statutory interpretation or other legal conclusions that provide a basis for the

award are reviewable de novo.’” Dalal , 182 F.3d at 759-60 (quoting Phelps v.

Hamilton , 120 F.3d 1126, 1129 (10th Cir. 1997)).

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988,

provides in relevant part: “In any action or proceeding to enforce a provision of

sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, . . . the court, in its

discretion, may allow the prevailing party, other than the United States, a
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reasonable attorney’s fee as part of the costs.” Id. at § 1988(b). Construing the

Act, the Supreme Court has stated that “in order to qualify for attorney's fees

under § 1988, a plaintiff must be a ‘prevailing party.’” Farrar v. Hobby , 506 U.S.

103, 109 (1992). The Court has given an expansive definition to “prevailing

party.” “In short, a plaintiff ‘prevails’ when actual relief on the merits of his

claim materially alters the legal relationship between the parties by modifying the

defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 111-12. 

In addition, “‘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 suit.’” Hensley v. Eckerhart ,

461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe , 581 F.2d 275, 278-79

(1st Cir. 1978)). In Phelps , we adopted Justice O’Connor’s “three-part test to

determine whether a prevailing party achieved enough success to be entitled to an

award of attorney’s fees.” Phelps , 120 F.3d at 1131. “The ‘relevant indicia of

success’ in such cases are: (1) the difference between the judgment recovered

and the recovery sought; (2) the significance of the legal issue on which the

plaintiff prevailed; and (3) the public purpose of the litigation.” Id. at 1131

(quoting Farrar , 506 U.S. at 121-22 (O’Connor, J., concurring)).

Applying this analysis to the case at bar, Plaintiff has not achieved

sufficient success to entitle her to attorney fees. Plaintiff’s litigation has neither
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altered her legal relationship to Defendant nor modified Defendant’s behavior. 

Plaintiff has not recovered relief, vindicated a legal issue, or served an important

public purpose. We have previously held that when a claim of free speech

retaliation under § 1983 is reversed on the merits, the court must also reverse an

award of attorney fees to the plaintiff. See Withiam , 98 F.3d at 584. We do so

now.

V. Conclusion

For the foregoing reasons, the decision of the district court is REVERSED

and REMANDED to that court with direction to set aside the front pay award, set

aside the award of attorney fees, and enter judgment in favor of the Defendant.