Avila v. Coca-Cola Co. (728 F. Supp. 685, 1989)

OPINION ON REMAND

WALTER E. HOFFMAN, Senior District Judge,

Sitting by Designation.

This case, having been decided by the United States Court of Appeals for the Eleventh Circuit, see 849 F.2d 511 (11th Cir.1988), on July 12, 1988, is now before the District Court following remand. By its judgment issued as a mandate on August 3, 1988, the judgment of the District Court was AFFIRMED in part, REVERSED in part, and REMANDED to the District Court “for further proceedings in accordance with the opinion of this Court.” Additionally, the judgment issued as a mandate provided:

It is further ordered that each party bear their own costs on appeal.

The opinion was authored by Circuit Judge Tjoflat, with Chief Judge Roney and visiting District Judge U.W. Clemon of the Northern District of Alabama comprising the panel. Chief Circuit Judge Roney filed a special concurring opinion.

While it is a bit difficult to determine precisely what the appellate court now wants by way of remand, about all that this Court believes to be necessary is a finding as to how many hours, if any, were devoted to the retaliation issue prior to February 7, 1984.

I.

Plaintiff now seeks, in addition to the $16,395.00 in attorneys’ fees and $1,311.54 in expenses which Coca-Cola paid to counsel for plaintiff as early as November 7, 1985, the further sum of $45,852.00 as attorneys’ fees and the further sum of $2,963.25 for litigation expenses. In the interim period, since the payment of fees and expenses on November 7, 1985, Messrs. Lipman and Weisberg have increased their hourly rates, with Weisberg going from $100.00 per hour to $150.00 per hour, and Lipman going from $120.00 per hour to $175.00 per hour. They cite authority for the Court to consider the delay in the receipt of payment to counsel and suggest that inflation should be considered. The appropriateness of a delay in payment adjustment in insuring a reasonable fee award for plaintiff counsel’s activities would, according to Lipman and Weisberg, go back to July 30, 1981, but this suggestion is clearly unreasonable as the action was not filed until July, 1982. The date of July 30, 1981, is the date of Avila’s first conference with Weisberg. This goes a bit too far in requiring payment in advance. They point out that their initial motion and memorandum for attorneys’ fees was filed on September 20, 1984. They would have this Court revise the award of attorneys’, fees and litigation expense to make the revised Lipman/Weisberg hourly rates retroactive. What plaintiff’s counsel fails to point out or otherwise intimate is that, by letter dated November 7, 1985, counsel for Coca-Cola forwarded to Mr. Weisberg three checks; two of which were for back pay, less withholding taxes, interest on the back pay at 12 percent per annum, and, finally, a third check payable to Weisberg in the sum of $17,706.54 covering attorneys’ fees of $16,395.00 and litigation expense of $1,311.54.

It is at least interesting to note that plaintiff’s attorneys registered no complaint to the immediate payment of the attorneys’ fees on November 7, 1985. Rather than there being any delay in payment of fees, the fees were paid prior to the resolution of the promotion issue and prior to the entry of the final judgment order. Indeed, it is a fair subject of inquiry as to whether attorneys receiving in full the fees allowed by the Court, and reserving no objection to that phase of the matter, should now be heard on any issue of retroactive fees.

The major problem is that plaintiff now requests this District Court to determine the hours and hourly rate for the time spent handling the appeal. Plaintiff’s counsel do not contend that they expended any time on the retaliation issue, except for perfecting plaintiff’s appeal, which resulted in the present remand proceedings, from the date of the payment by Coca-Cola on November 7, 1985 until the date of the filing of the notice of appeal on December 18, 1986, following the entry of the final judgment on November 28, 1986. Without attempting to state whether the hours were required prior to or after February 7, 1984, Weisberg now claims 205.93 hours at $150.00 per hour, and Lipman claims 85.50 hours at $175.00 per hour. Messrs. Weis-berg and Lipman, in their motion filed on September 20, 1988, state that those hours and rates are for “attorney fees and expenses incurred prior to February 7, 1984 in connection with the retaliation claim, and in connection with the prosecution of the appeal.”

Plaintiff’s counsel has failed to breakdown the time spent on the appeal as contrasted with the retaliation issue. According to the computation later referred to herein, it appears that Weisberg has spent 18 hours on the remand proceedings, and Lipman claims 4V2 hours on remand. Thus, at the present prevailing hourly rate, Coca-Cola is to be charged, according to plaintiffs counsel, with $2,700.00 for Weis-berg’s services and $787.50 for Lipman's services, confined solely to the present remand. And the hours continue — we must wonder whether the administration of justice is devised to serve the litigants or the attorneys.

Aside from the foregoing, this Court cannot read the Avila opinion as any indication that plaintiff was the prevailing party on appeal; that the appellate court ever intimated or suggested that the District Court, on remand, should give any consideration to counsel fees for appellate purposes; and that the judgment issued as a mandate did anything other than to say that each party should pay its own costs, all of which is contrary to the prevailing party rule and which mandate is now being violated by counsel for plaintiff. Rule 39(a), Fed.R. App.P., mandates, in this case, that the Court of Appeals direct how the costs shall be assessed. The statute under which an attorneys’ fee is allowed by the District Court, 42 U.S.C. § 1988, specifically provides that attorneys’ fees are a part of the costs allowable to the prevailing party.

At the' very best this is a limited remand and, in the absence of express direction by the Court of Appeals, there will be no extended discussion of the hours and hourly rate expended by counsel for plaintiff for appellate purposes. Courts of Appeal have allowed attorneys’ fees for appellate purposes, when the appeal is frivolous, Crockett v. State Farm Fire and Casualty Co., 849 F.2d 1369 (11th Cir.1988), but unless the appellate court expressly directs the District court to handle the matter on remand, such fees are fixed by the panel or the Clerk, and do not go back to the District Court.

To hold otherwise would result in endless litigation with a never-ending final decision. Judges are already trying all Civil Rights cases at least twice, once on the merits and once on attorneys’ fees. Assuredly, there must be some end to this type of litigation.

II.

The remand Court is being called upon to determine whether any of counsel’s work prior to February 7, 1984, was essential to the retaliation claim. The majority opinion points out that it was necessary for Avila “to file a complaint in the first place” before the retaliation claim could form any basis for a complaint. This rather amazing statement encourages attorneys to file frivolous complaints and then, if the wheel of fortune stops on any number, no matter how small and how insignificant, counsel fees may be appropriately claimed. The fact that counsel are being paid for the second amended complaint, as in this case, appears to be of no consequence to counsel.

The majority opinion acknowledges that “an exact allocation is impossible,” and that the Court must have considerable discretion in making its determination. Hunting for the needle in the haystack, this Court will attempt to review the pleadings and evidence and will start with the complaint.

The Complaint

The original complaint, as filed on July 14, 1982, seeks declaratory and injunctive relief under the Civil Rights Act, 1964, and the Civil Rights Act of 1866. It alleges national origin discrimination based upon (1) failure to promote, (2) failure to pay on the same basis as Caucasian employees, (3) failure to provide equal training opportunities, and (4) harassment, intimidation and spurious evaluations. It alleges the basic jurisdictional requirements, including the filing of his administrative claim of discrimination with the EEOC on December 18, 1980, and the receipt of a “Right-to-Sue” letter on May 11,1982. It names plaintiff’s supervisors, “Cahill, Kloofer [sic], and Heath” as those being guilty of discriminatory acts. In addition to a declaration that Coca-Cola’s practices violated Avila’s rights, plaintiff sought (1) back pay and (2) promotion to which Avila would have been entitled but for unlawful discrimination, including an injunction.

At no point in the complaint or first amended complaint is there any word suggesting any retaliation on the part of Coca-Cola. Of course, attorneys’ fees and costs were requested.

The retaliation had, in fact, occurred on December 28, 1981, at which time Vice President Truitt blocked any further raise in pay for Avila, which act was contrary to the recommendation of Heath, the supervisor. Presumably, at the time of the filing of the complaint, plaintiff’s counsel did not know of any retaliation, although plaintiff may have known because of what Cahill, his ultimate supervisor, told him.

The Answer

Coca-Cola answered the complaint on August 10, 1982. The answer admits the employment of Avila, giving specific dates as to his steps of promotion. All of the pertinent allegations of discrimination are denied.

Discovery

The parties took the following actions by way of discovery:

(A)August 20, 1982 — Plaintiff (Weis-berg) filed a request for the production and inspection of documents, including (1) personnel records for 13 employees, (2) job descriptions, (3) organization charts, (4) manuals and procedures relating to hiring, promotion, transfer, discipline, termination, evaluation, discharge and compensation, (5) affirmative action plans, (6) all EEO reports, (7) a list of all applications for employment since January 1, 1976, and (8) all documents reflecting employee training in the Engineering Department.

To this moment there is no suggestion of retaliation.

(B) Interrogatories were apparently propounded by the plaintiff and defendant. These interrogatories are not in the file wrapper but are set forth in the answers. They carry no suggestion of retaliation.

(C) On October 5, 1982, Coca-Cola responded to plaintiff’s first request for the production of documents stating that all documents had been produced on October 1, 1982, but noting objections to certain requests. The defendant also answered the first set of interrogatories. A review of these discovery processes reveals that nothing of consequence would be material to an action for retaliation. In the pretrial stipulation, filed December 30, 1982, plaintiff stated that his claim of discrimination was “in the following ways: (i) Defendant’s failure and refusal to promote him while less qualified and less experienced non-Hispanics were promoted or hired from outside Defendant’s work force for these higher classified positions; (ii) Defendant’s failure to compensate him [Avila] on the same basis as similarly situated non-Hispanic employees; (iii) Defendant’s failure to provide him [Avila] equal training opportunities and (iv) subjecting him [Avila] to unwarranted harassment, intimidation and spurious evaluations.”

The closest point approaching retaliation is the explanation under (ii) above — the failure to compensate Avila for the years 1980, 1981 or 1982 where, the pretrial stipulation says, in part:

Mr. Avila was singled out in the Engineering Department to receive no salary increase in 198Q, 1981 or 1982. Other non-PIispanic employees received at least one salary increase in each of those years as well as in all preceding years of their employment.

The parties stipulated facts regarding Defendant’s employees (including Avila) that were employed in the Engineering Department since 1972, namely, the date the employment commenced, the national origin of the employee, the salary at the date the employee was hired, the history of the pay increases received by each employee, all positions held by the employee while working for Coca-Cola, the employee’s education, and the changes in status/promotion received by each employee.

The foregoing demonstrates the ease by which the plaintiff’s counsel obtained the records in the foregoing paragraph. Indeed, essentially all that plaintiff was required to prove to sustain the back pay claim for the pertinent years was the rate of Avila’s pay, that his national origin was the motivating reason for Coca-Cola’s actions, and the amounts paid by increases to other employees during the pertinent years, although counsel later agreed that the average increase was four percent.

The first complaint filed by plaintiff was on July 14, 1982. This was met by a motion for partial summary judgment on the ground that 42 U.S.S. § 1981 does not encompass discrimination based solely on national origin. This motion was granted on March 29, 1983 by order of former District Judge John A. Reed. Plaintiff’s counsel now concede that they are not entitled to fees on the summary judgment motion, although Weisberg, perhaps inadvertently, claimed two hours on March 23, 1983, in the original billing, for “Preparation for hearing on Defendant’s Motion for Summary Judgment.” The complaint was amended on April 11, 1983 and answered by Coca-Cola on April 14, 1983. Once again, neither the amended complaint nor the answer to the amended complaint suggested any form or issue of retaliation.

On January 12,1984, Judge Reed entered an order closing discovery and approving the prior pretrial stipulation and stating that it “shall control the course of the trial.” However, on January 23, 1984, plaintiff filed an amendment to the pretrial stipulation adding certain witnesses and exhibits, but still not reflecting any issue of retaliation. A few days prior thereto, on January 16, 1984, defendant had added the name of George Truitt to its witness list.

On February 6,1984, plaintiff voluntarily filed a pretrial memorandum (11 pages). This filing was on the day the case commenced. Even as late as that date, there is nothing stated therein which may have suggested that plaintiff or his counsel had any knowledge as to the existence of a claim for retaliation which, when proven, almost automatically supported the back pay remedy for the four years ultimately awarded by the Court. While we speak of “back-pay,” this is a misnomer as the award was for damages occasioned by the retaliation. Thus, what was necessary to prove any charge of retaliation differs substantially from the equitable remedy for violation of the retaliation statute, 42 U.S.C. § 2000e-3.

Counsel for the plaintiff, and perhaps to some extent the appellate court, are laboring under the impression that discrimination and retaliation are based on related legal theories, and the use of the word “probative” in Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir.1984), makes all evidence interrelated and thus to be considered for attorneys’ fee purposes. If that is the law, Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), can be considered of no effect and must be disregarded. Counsel for plaintiff emphasize the use of the word “probative” by Judge Wisdom in Carmichael, where he stated:

In the present case, the plaintiff had to develop fully the facts concerning his employment for the court to be able to evaluate his contentions; thus, even if only the wage claim were ultimately successful, the time spent developing facts concerning the hiring and promotion claims would be compensable if those facts were also probative on the wage claim.

Carmichael is entirely different from the factual situation regarding the retaliation issue in the instant case. The only facts of “probative” value in Avila are (1) was Avila employed by Coca-Cola, (2) if so, what was his pay, (3) how were Coca-Cola’s employees in the Engineering Department evaluated, and (4) what was the resulting effect of a failure to evaluate? Except for the last item, there was complete agreement on the remaining factors and they were never in controversy. There are, therefore, limitations on the use of the word “probative.”

III.

DISCRIMINATION v. RETALIATION

The opinion of the Court of Appeals holds that the unsuccessful discrimination claims involving promotion and merit increases are “related” to the successful charge of retaliation for the purposes of determining the attorney fees award, citing Popham v. City of Kennesaw, 820 F.2d 1570 (11th Cir.1987).

As noted, the original complaint sought relief under 42 U.S.C. § 2000e-2(a) which reads:

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Thus, to recover under 42 U.S.C. § 2000e-2(a), a plaintiff must show unlawful discrimination by reason of race, color, religion, sex, or national origin. Discrimination alone is not sufficient. It must be unlawful discrimination expressly prohibited. In this case the District Court found, and the Court of Appeals agreed, that there was “no shred of evidence” showing unlawful discrimination under any of the foregoing categories.

The recovery for the plaintiff which justified his merit increases by way of damages was grounded solely on 42 U.S.C. § 2000e-3, reading as follows:

(a) It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he had made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter (Emphasis supplied).

It was predicated upon the allegations of the second amended complaint that Avila’s recovery was grounded. The factors involving national origin, race, religion, color, or sex are not required to be proven in a retaliation case — the only requirement is that a charge was made by Avila and that Coca-Cola thereafter unlawfully discriminated against Avila because he made the EEOC charge. Thus, § 2000e-3(a) has incorporated by reference § 2000e-2(a)(1). Silver v. KCA, Inc., 586 F.2d 138, 142 (9th Cir.1978). Silver refers to two “distinct unlawful employment practices” (discrimination on the ground of race, and retaliatory discrimination), “whose standards necessarily do differ.” Avila’s action in bringing charges against Coca-Cola is not a violation of 42 U.S.C. § 1981, but is protected only by reason of § 2000e-3(a).

It therefore appears clear that Avila would not have recovered anything, nor would the attorneys be entitled to any attorneys’ fees, but for the retaliation claim under § 2000e-3(a). It was at the suggestion of the Court that plaintiff’s counsel finally requested leave to file a second amended complaint adding a count of retaliation under 42 U.S.C. § 2000e-3. It was at this moment that attorneys’ fees became potentially possible. Prior to that moment, the prospects of back pay or promotion were essentially nil as there never was any evidence of unlawful discrimination by reason of the factors named in the statute. Thus, there may be discrimination in many situations, but this does not assure a cause of action against the party doing the discriminating unless it is for reasons of race, color, religion, sex, or national origin.

Retaliation is, in effect, a discriminatory act, but the statute making it an unlawful employment practice to retaliate does not require that the discrimination be for the reason of race, color, religion, sex, or national origin. A person may file a perfectly frivolous charge with the EEOC but, if he is then the subject of retaliation, he has a cause of action under 42 U.S.C. § 2000e-3(a). This demonstrates that the claims are separate and distinct and not subject to the argument that evidence discovered in investigating an unsuccessful claim may constitute a basis for recovery of attorneys’ fees in considering the successful claim. It is true that the remedies for a retaliation claim frequently involve, as in this case, a back pay claim to the same effect as if the party had been the subject of unlawful discrimination.

The original and first amended complaints filed by plaintiffs counsel allege that Avila was the subject of discrimination from 1974 until at least the date the action was filed on July 14,1982. Since there was “no shred of national origin” discrimination, this Court discussed only 1980, 1981, 1982 and 1983 and then only on the retaliation issue which came to light during the course of trial and was the subject of the second amended complaint.

This leads us to a further consideration of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), and the more recent pronouncement of the Supreme Court in Texas State Teachers Association v. Garland Independent School District, — U.S.-, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989 in an opinion authored by Justice O’Connor). As Justice Powell stated in Hensley, “It remains for the district court to determine what fee is ‘reasonable.’ ” He asserts that the starting point for determining a “reasonable” fee is the number of hours “reasonably” expended on the litigation, multiplied by a “reasonable” hourly rate, and the burden is on the attorney seeking the award of fees to submit evidence supporting the hours worked. It admonishes counsel seeking the award to make a good-faith effort to exclude from any fee request hours that are excessive, redundant, or otherwise unnecessary. Justice Powell then turns to the critical factor of “results obtained,” an element in this case in which plaintiff’s counsel fell flat on their faces as there was “no shred of discrimination by reason of national origin.” The opinion recognizes that “a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories.” On this subject the opinion states:

In such a suit, even where the claims are brought against the same defendants— often an institution and its officers, as in this case — counsel’s work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been “expended in pursuit of the ultimate result achieved.”

The Court held that unrelated claims must be treated as if they had been raised in separate lawsuits and, therefore, no fee could be awarded for services on the unsuccessful claim. Hensley further says:

Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained.

Nor has this remand Court ever criticized Avila or his counsel for filing an action, especially since Avila had not received a merit increase when essentially all other employees in the Engineering Department had been the recipients of such increases. Something obviously was wrong and the resulting trial brought forth the retaliation by Vice President Truitt which almost automatically should have ended the case.

Under footnote 12 in Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, the Supreme Court approved a quotation from Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978), reading:

As for the future, we would not view with sympathy any claim that a district court abused its discretion in awarding unreasonably low attorney’s fees in a suit in which plaintiffs were only partially successful if counsel’s records do not provide a proper basis for determining how much time was spent on particular claims.

Unfortunately, except for the hours which plaintiff’s counsel now estimate were spent on the retaliation claim, which hours differ very little as to the nature of the work performed from that as stated in the original fee request which did not segregate the work done on a successful claim (retaliation) from that done on the unsuccessful claims (discrimination in pay and discrimination in failure to promote), we have nothing to rely upon except guesswork. Assuredly, the extent of Avila’s success is a crucial factor in determining the proper amount of an award of attorney’s fees, Hensley, 461 U.S. at 440, 103 S.Ct. at 1943. Again quoting from Justice Powell’s opinion (p. 440, 103 S.Ct. p. 1943), we find:

Where plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the' unsuccessful claim should be excluded in considering the amount of a reasonable fee (Emphasis supplied).

The opinion by Judge Tjoflat in the Avila case does not discuss whether the retaliation claim is distinct from the discrimination claims, but it does hold that the claims are “related” for purposes of determining the attorney fees award, citing Popham v. City of Kennesaw, 820 F.2d 1570, 1579 (11th Cir.1987). Popham is a well-reasoned opinion and touches most of the problems in the instant case. Factually, there is a great difference which would more obviously justify a finding of “a common core of facts” which were “based on related legal theories.” The instant case on the fee issue was decided in February, 1985, whereas Popham appeared about two and one-half years later. There, as Judge Johnson suggests, after the lodestar has been determined, the Court may reduce the lodestar to reflect the plaintiff’s partial success, but “if the claims on which he did prevail were ‘distinctly different claims ... based on different facts and legal theories’ the court cannot award any fee for services on the unsuccessful claim.” Popham, at 1578; Hensley, 461 U.S. at 434, 435, 103 S.Ct. at 1939, 1940.

This is the problem which confronted the court when it granted the interim fee to counsel for plaintiff in February, 1985. Plaintiff had not been successful to any extent in establishing discrimination based upon national origin, yet, on the other hand, plaintiff had established a strong case for a separate and distinct cause of action for unlawful retaliation. By granting leave to amend the complaint, even after all evidence on the back-pay claim had been introduced, it made the plaintiff the “prevailing party” as to the third count of the second amended complaint, which count charged retaliation under 42 U.S.C. § 2000e-3(a).

IV.

DUPLICATION OF EFFORT — UNNECESSARY

This Court was presented with the request for an allowance of attorneys’ fees and costs in September, 1984, which finally resulted in a memorandum (11 pages), dated and filed on February 1, 1985, awarding attorneys’ fees and costs. In their first request counsel for plaintiff (David Lipman and Robert Weisberg) requested $39,830.00 in attorneys’ fees and $7,990.03 in costs. As indicated, the aggregate attorneys’ fees allowed were $16,395.00. Costs were ordered paid by Coca-Cola only to the extent of $1,311.54. Because Coca-Cola did not oppose the number of hours expended, nor the hourly rate for services rendered, the Court adopted the hourly rates and, to the extent that the hours consumed included an allowance for both successful and unsuccessful claims, the Court accepted the time calculation with Lipman submitting 60.5 hours and Weisberg 325.7 hours. But under the then recently decided case of Hensley v. Eckerhart, supra, the Court felt obliged to give little or no consideration to the hours expended prior to the raising of the retaliation issue on the first day of trial.

Only Weisberg was in attendance at the trial of this case on February 6-7, 1984, although it is believed that Lipman was present during at least a portion of the second trial day even though the transcript does not reveal any participation by Lip-man on these days. The case itself was admittedly not complex although it has become rather involved in an effort to determine what hours were expended by counsel for plaintiff which may have been of assistance to the proof of the retaliation issue. The presence of two partners with presently substantial hourly rates for their services raises the interesting question as to whether 42 U.S.C. § 1988 was ever intended to compensate two partners in a relatively simple case, or whether only one fee should be considered as necessary in such a simple case. The Eleventh Circuit has at least partially disposed of this issue in Johnson v. University College, 706 F.2d 1205, 1208 (11th Cir.), cert. denied, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983), saying:

The use in involved litigation of a team of attorneys who divide up the work is common for both plaintiff and defense work.

(A) reduction is warranted only if the attorneys are unreasonably doing the same work (Emphasis supplied).

Jean v. Nelson, 863 F.2d 759, 772, 773 (11th Cir.1988).

This Court was aware of the authorities with respect to attorneys’ fees, including the importance of a lodestar and the reductions or additions to same, but has never entertained the belief that these mathematical computations were to be relied upon as a final answer. The Supreme Court has held that the “reasonable fee” may be more or less than the lodestar computation. What everyone is desirous of obtaining, and what appears to be the bottom line, is the question as to what constitutes a “reasonable fee” under all of the circumstances. Justice Powell, in Hensley, 461 U.S. at 434, 103 S.Ct. at 1939, has said:

Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.

When the Court reviewed the Schedule of Hours listed by each attorney, Weisberg and Lipman, filed on September 10, 1984, it became apparent that plaintiff’s attorneys were making no attempt to confine their claim to work affecting the retaliation issue, but were indeed seeking compensation for the discrimination claims and the motion for summary judgment, in which last pleading they now admit a fee should not have been claimed. When contrasted with the Appendix Exhibit filed by counsel for plaintiff on September 20, 1988, the fee requests show an obvious duplication of effort in that the two attorneys were unreasonably doing the same work, only they alter the wording of their notations. This was apparent also from the Schedule of Hours filed by Weisberg and Lipman in 1984. This Court, realizing that counsel for plaintiff had overlooked the importance of the retaliation issue, and having literally urged plaintiff’s counsel to request leave to file an amended complaint under Rule 15(b), concluded that it would be the better part of wisdom to delete all hours expended prior to February 7, 1984, and limit the attorneys’ fees to the hours affecting the retaliation issue. Now that counsel for plaintiff and the appellate court suggest that the district court redetermine the hours, and attempt to ascertain the hours prior to February 7, 1984 which may have been related to the retaliation issue, it requires a more complete review and, reluctantly, may be offensive to the attorneys.

The unnecessary duplication of effort may be demonstrated by the dates of August 31, 1984; September 1, 1984, and September 2, 1984, in their presentation of “Fees for Fees.” Out of his total of 60.5 hours expended on the entire case, Lipman had 16 hours charged to “Fees for Fees” over a period of three days. Weisberg, charging only two days to “Fees for Fees,” had a total of 8.0 hours. Thus, 24 hours are charged to the client or the party to be held liable for the attorneys’ fees. It is interesting to see the description of this particular work, as follows:

Lipman

8-31-84 — Research, preparation and drafting of Plaintiff’s Memorandum of Points and Authority in Support of Motion for an Award of Attorneys Fees and Litigation Expenses.

9-01-84 — Research, preparation and drafting of Plaintiff’s Memorandum of Points and Authority in Support of Motion for an Award of Attorney Fees and Litigation Expenses.

9-02-84 — Research, preparation and drafting of Plaintiff’s Memorandum of Points and Authority in Support of Motion for an Award of Attorney Fees and Litigation Expenses.

The foregoing accounts for 16 hours at $120.00 per hour (now proposed by plaintiff’s counsel to be increased retroactively to $175.00 per hour). Weisberg’s entries for his two days, or a total of 8 hours at $100.00 per hour (now proposed by plaintiff’s counsel to be increased retroactively to $150.00 per hour), are identical to the entries made by Lipman. If it requires the services of two partners, who claim vast expertise in handling Civil Rights cases, a total of 24 hours of continuous work to make up a bill for services rendered, it is little wonder that the public has lost confidence in the legal profession. Just the cost of making up the bill and counsel’s brief in support of same, aggregates — according to what plaintiff’s counsel now are requesting — the sum of $4,000.00 and, as of September, 1984, the figure aggregated $2,720.00. There appears to be a substantial inflationary reaction on the value of billing in the legal profession.

One of our primary difficulties in arriving at a conclusion as to the reasonableness of any fee has been the manner in which fee petitions were presented by Messrs. Lipman and Weisberg. In September, 1984, when they first applied for fees, they listed the hours starting with the date that Avila first conferred with Weisberg on July 30,1981, and continuing thereafter through September 2, 1984, which involved the final day of “fees for fees” where counsel spent 24 accumulated hours preparing a bill. There was no attempt to breakdown the time expended between the retaliation issue and the other issues making up the national origin claim of discrimination. Now, after the remand, the attorneys seek to revise their rate schedule under some theory of delayed payment, and further include all hours spent on appeal to the same extent as though they had completely prevailed on the appeal. Indeed, for example, they attempt to charge the two hours of the July 30, 1981 interview with Avila (the first interview) on the basis of three-fourths of the time being spent on retaliation and only one-fourth of the time on other issues (See Appellant Exhibit supporting plaintiff’s motion for attorney fees for retaliation claim, filed September 20, 1988). This is a strange allocation as Defendant’s Exhibit 7 contains the Truitt memo, dated December 28, 1981 which was the retaliation. How Weisberg and Avila could discuss the retaliation issue as early as July 20, 1981, is hard to follow. Also, for example, while the original complaint never mentioned any issue of retaliation, Weisberg alleges that his 4 hours required for drafting the first complaint should be allocated so that 2.8 hours should be a reimbursable item on the retaliation issue. This is a far cry for a man who confessed ignorance of any retaliation claim on February 7, 1984 (see footnote 6) after the evidence had been completed. How one can claim nearly three-fourths of his time being spent on a retaliation issue which is not mentioned in the complaint is hard to comprehend and the remand Court cannot, and does not, accept the unsworn statement of Mr. Weisberg on these and many other items listed in the schedule. Of less importance, but equally unreliable, is Lip-man’s claim that he reviewed the original complaint on July 11, 1982 and, while he only spent 15 minutes for that work, he charged the entire time and amount to the retaliation issue and claims reimbursement.

The hours charged for appeal purposes are analyzed as follows:

e s* m

05-08-87 o (NÍ

05-19-87 o ^

05-20-87 o co

05-21-87 o c4

05-22-87 to or

05-25-87 -3 cn

5.00 (1) 05-26-87

6.00 (1) 05-27-87

7.00 (1) 11.50 (1) 05-28-87

6.50 (1) 12.50 (1) 05-29-87

4.00 (1) 7.00 (1) 05-30-87

10.50 (1) 05-31-87

Weisberg Lipman

06-01-87 9.00 (1)

07-22-87 1.75

08-10-87 .25

09-29-87 1.50

09-30-87 4.00

10-04-87 8.00

10-05-87 6.00

07-14-88 1.50

09-06-88 6.00

09-08-88 4.00

09-10-88 4.00

09-12-88 4.00

09-17-88 2.00

09-19-88 2.50

TOTAL 79.50 64.75

Note (1) on Lipman’s summary covers hours expended by Lipman in essentially identical language, reading: “Research, preparation and draft of 11th Cir. Brief.” Lipman, according to his summary spent 54V4 hours in preparing his client’s brief on appeal. Weisberg, under note (1), spent 28V2 hours under a caption entitled “Drafting Appellate Brief” or “Drafting and Editing Appellate Brief.” Thus, of Lipman’s total of 101.25 hours claimed to be reimbursable, 64.75 hours were for appellate purposes.

The fees continue past the remand order of the appellate court. As indicated previously, Weisberg claims 18 hours devoted to remand; Lipman claims 4V2 hours.

The remand Court has had great difficulty in ascertaining how and why Messrs. Lipman and Weisberg conclude that they are entitled to attorneys’ fees for appellate purposes, as well as attorneys’ fees for remand purposes. If they are correct in their contention, then assuredly the appellate court must have erred in directing that “each party bear their own costs on appeal,” as the “prevailing party” is generally entitled to recover his or her costs.

Nor can the remand Court accept the allocation of time spent on the retaliation issue with respect to counsel’s conversations with the EEOC, their interviews with Avila, and the work done in discovery proceedings. As to the latter item, it is undoubtedly true that the attorneys would have to obtain from some source the amounts paid to other employees in the Engineering Department during the same period of time. Presumably, Avila was furnished a statement of his earnings on a monthly basis, but if he was not so supplied or otherwise failed to keep his earnings statements, it was readily procurable through discovery. If we were to assume that the discovery (interrogatories and request for production of documents) was chargeable, on July 30,1982 when prepared solely to the retaliation issue, we have only 3V2 hours chargeable. The attorneys now seek to charge about 2V2 hours of the above-stated 3V2 hours to the retaliation issue.

This Court originally allowed attorneys’ fees to plaintiff’s counsel at their requested rates and for all hours from February 7, 1984. The Court did this because of the lack of any objection by Coca-Cola’s counsel, and the apparent work on the retaliation issue. In a review of what the Court originally allowed, while we have no quarrel with the rates then charged by Lipman and Weisberg, we do believe that we were overly generous in the number of hours allowed. For example, the following entries appear as to work performed on the retaliation issue and the Rule 15(b) issue:

Weisberg Lipman 2?