Abuse of Discretion – Damages

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7^th Circuit Court of Appeals

Case Name: Denean Adams v. Board of Education of Harvey School District 152, et al.,

Case No.: 19-2534; 19-3269

Officials: SYKES, Chief Judge, and EASTERBROOK and BARRETT, Circuit Judges.

Focus: Abuse of Discretion – Damages

Denean Adams was superintendent of the Harvey, Illinois, public schools from July 2013 through June 2016. Her tenure ended unhappily: in July 2015 the Board of Education revoked an offer to extend her three-year contract; later that educational year it blocked her email account and tried to pretend that she did not exist. Indeed, the Board told state education officials in spring 2016 that she was no longer superintendent. These and related events put her under a lot of stress. She took medical leave in March 2016 and never returned to work. But she did file this suit under 42 U.S.C. §1983. A jury awarded $400,000 in damages after concluding that the Board and its members had violated the First Amendment (applied to the states through the Fourteenth). The district court declined to set aside that award, see 2019 U.S. Dist. LEXIS 117428 (N.D. Ill. July 15, 2019), and added about $190,000 in attorneys’ fees. 2019 U.S. Dist. LEXIS 122282 (N.D. Ill. July 23, 2019). Both sides have appealed.

Adams asks us to dismiss the Board’s appeal for lack of jurisdiction. The Board’s principal argument on the merits is that a report to the police is a personal grievance, not a matter of public concern, and therefore falls outside the scope of the First Amendment. That personal grievances are the subject of state law (torts and contracts) rather than the First Amendment is well established. See, e.g., Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 563 (1968). Yet the district court did not rule otherwise. Our conclusion that Adams’s speech is within the scope of the First Amendment means that the evidence presented a jury question about whether her statements caused the end of her employment. The record permitted a reasonable jury to find that they did. Likewise a reasonable jury could conclude that an ordinary employee in Adams’s position would be deterred from speaking by the prospect of losing her job.

The Board’s other arguments are feeble. It contends, for example, that Adams lacks a good claim because the proposal to extend her contract through June 2017 was properly rescinded (or never properly made in the first place). But the jury did not award damages under a contract theory, nor did the district judge permit the jury to consider Adams’s contention (under the Due Process Clause of the Fourteenth Amendment) that the Board should have offered a hearing before rescinding the proposed contract extension. The jury was permitted to consider the possibility that Adams would have remained on the job longer had she kept silent, but that concerns damages on her First Amendment theory. Damages for a violation of the First Amendment are not limited by the duration of contracts.

The Board also asserts that the award of $400,000 is excessive, but our standard of review is highly deferential to the jury’s evaluation. The district judge explained why this award is similar to those in other, comparable cases. No more need be said. This brings us to Adams’s cross-appeal, which concerns the award of attorneys’ fees under 42 U.S.C. §1988. The district court determined the number of hours that counsel properly devoted to the claims on which Adams prevailed (she lost on several claims against all defendants and lost outright against some defendants) and multiplied this by the hourly rate for the services of Jerome M. Davis, who represented her. Davis told the judge that he has charged some paying clients as much as $265 per hour, but he asked for what he called an “enhancement” to $550 to reflect the risk of loss. Multiplying $550 by the number of hours Davis said he devoted to the case produced roughly $550,000. The judge awarded some $190,000, derived from multiplying $265 per hour by a smaller base of compensable hours. Adams contends in the cross-appeal that Davis should have received credit for more hours and a rate of at least $385 per hour, plus a 25% bonus, for a total of roughly $485,000.

Only a few words are necessary to dispose of this outlandish request—outlandish because the request for two enhancements (a higher hourly rate and a bonus) contradicts the Supreme Court’s ruling that enhancements are not permitted under fee-shifting statutes. See Burlington v. Dague, 505 U.S. 557 (1992). They may be appropriate in common fund cases, in which the fee comes out of the prevailing side’s winnings, but are forbidden when the defendant pays. The district court thought it a stretch to award even $265 per hour, given the weakness of the evidence supporting that rate for Davis’s time; the judge did not abuse her discretion or commit a legal error in declining to award more. Nor did the judge abuse her discretion or make a clearly erroneous finding in counting the number of hours reasonably devoted to pursuing the claims on which Adams prevailed.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.