                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                    PUBLISH
                                                                  January 10, 2007
                   UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 JILL M . CRUM PACKER,

             Plaintiff-Appellee,
       v.                                       Nos. 04-3266 and 05-3115
 STA TE O F KANSAS,
 D EPA RTM EN T O F H U MA N
 RESOURC ES,

             Defendant-Appellant.



        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                    FOR T HE DISTRICT OF KANSAS
                      (D .C . NO. 00-CV-4044-RDR)


Deanne W atts Hay (M att P. Patterson with her on the briefs), Parker & Hay, LLP,
Topeka, Kansas for Defendant-Appellant.

Timothy W . M onsees, M onsees M iller M ayer Presley & Amick, PC, Kansas City,
M issouri (Gene P. Graham, Jr. and Deborah J. Blakely, W hite Allinder Graham &
Buckley, LLC, Independence, M issouri with him on the brief) for Plaintiff-
Appellee.


Before L UC ER O, A ND ER SO N, and TYM KOVICH, Circuit Judges.


T YM K O VIC H, Circuit Judge.
      Title VII does not protect an appointee on the policy making level in state

or local government. In this case, Jill Crumpacker, a senior member of the

Kansas Department of Human Resources (KDHR), was fired by the Secretary of

the Department. Crumpacker sued KDHR under Title VII, alleging that she was

fired because of her sex. The district court rejected KDHR’s legal argument that

Crumpacker was an appointee on the policy making level since she had not been

appointed by an elected official, as required by our case law . A jury later ruled in

her favor on the discrimination claim. KDHR appeals the district court’s denial

of its post-trial motions for judgment as a matter of law or for a new trial, as w ell

as the district court’s award of fees.

      W e exercise jurisdiction pursuant to 42 U.S.C. § 1291. Finding that

Crumpacker was not appointed by an elected official, we affirm.

                               I. Factual Background

      B ill G raves w as elected G overnor of Kansas in 1994. For the first two

legislative sessions of his administration, the Governor employed Jill Crumpacker

as a legislative liaison, working directly for him in the Governor's office. In this

position, Crumpacker was appointed by, and was employed at the pleasure of the

Governor.

      In A ugust 1996, following these two legislative sessions, KDHR Secretary

W ayne Franklin asked Crumpacker to submit her resume for the position of

Director of Employment and Training within KDHR. As with other cabinet level

                                          -2-
officers in Kansas, Secretary Franklin held his position by virtue of a

gubernatorial appointment.

       A fter an interview , Secretary Franklin selected Crumpacker for the KDH R

director's position. Her appointment was subject to Kan. Stat. Ann. § 75-5702

which required the G overnor’s “consent” for all KDHR division directors whose

appointments are not otherwise provided for by a separate statute. M ore

specifically, the statute provided that the KDHR Secretary “may appoint, with the

consent of the Governor . . . one or more division directors . . . all of whom shall

serve at the pleasure of the secretary of human resources. . . .” Kan. Stat. Ann.

§ 75-5702 (1976). Crumpacker testified that she never met or interview ed with

the Governor regarding the position.

      Pursuant to the statute, Franklin sent the Governor a letter requesting

approval of Crumpacker’s appointment as a KDHR division director, and

approval of Crumpacker’s salary pursuant to Kan. Stat. Ann. § 2935(b). The

Governor’s appointments secretary, Jodi Krueger, responded with a letter

approving Crumpacker’s salary and appointment. Crumpacker’s position was

unclassified, meaning her employment as a KDHR division director was not

subject to K ansas’s civil service laws.

      In her position at KDHR, Crumpacker had a variety of responsibilities. She

led one of the largest divisions in K ansas state government, overseeing at least

280 employees. Crumpacker also served on the Kansas W orkforce Investment

                                           -3-
Partnership (KW IP), an advisory council to the Governor mandated by federal

law. She was appointed to her KW IP position by the Governor, receiving a

certificate of appointment. Crumpacker’s KDHR division was responsible for

staffing KW IP, and her appointment there was by virtue of her K DHR position.

In weekly updates to Franklin, Crumpacker claimed responsibility for helping to

develop KDHR policy, especially with reference to budget planning and federal

grant applications.

      Differences arose between Franklin and Crumpacker, and eventually

Franklin decided he wanted to fire her. According to Franklin, he met with the

Governor to discuss the situation. Franklin explained he believed that he could

not fire Crumpacker without the Governor’s permission. The Governor advised

Franklin to “do what [he] felt [he] needed to do.” Aplt. A pp. for 04-3266, Vol. I

at 78. Franklin fired Crumpacker in September 1998.

                              II. Procedural H istory

      Crumpacker filed suit in the District of Kansas under Title VII of the Civil

Rights Act, 42 U.S.C. §§ 2000e–2000e-17, alleging that Franklin discriminated

against her on the basis of her gender. KDHR moved for summary judgment on

the basis of 42 U.S.C. § 2000e(f) which provides that certain political appointees

and policymaking officials are not considered employees protected by Title VII.

      The district court denied the motion, concluding that Crumpacker w as not a

political appointee as a matter of law. KDHR filed an interlocutory appeal

                                         -4-
challenging the court’s ruling on the motion and on several other issues relating

to sovereign immunity, which we affirmed in Crumpacker v. Kan. Dep’t of

Hum an Res., 338 F.3d 1163 (10th Cir. 2003) (Crumpacker I). W e did not,

however, reach the question in that appeal concerning the policymaker exception

to Title VII.

      After remand, the case proceeded to trial and the jury returned a verdict for

Crumpacker. KDHR then moved for judgment as a matter of law or for a new

trial under Federal Rules of Civil Procedure 50(b) and 59, respectively. The

district court denied the motion, holding that to be exempt from Title VII’s

protections, a person must have been appointed by an elected official. The court

found Crumpacker was not eligible for the exemption because she was not so

appointed.

                                III. Title V II Claim

      W e review the district court’s denial of judgment as a matter of law de

novo, using the same standard employed by the district court. M ason v.

Oklahoma Turnpike Auth., 115 F.3d 1442, 1450 (10th Cir. 1997). W e construe

the facts of the case in the light most favorable to the jury’s verdict. In doing so

we bear in mind that “[u]nless the proof is all one way or so overwhelmingly

preponderant in favor of the movant as to permit no other rational conclusion,

judgment as a matter of law is improper.” Greene v. Safeway Stores, Inc., 98




                                         -5-
F.3d 554, 557 (10th Cir. 1996) (internal citations omitted).

                                           A.

       Title VII outlines four classes of persons w ho are exempt from its

protection: (1) elected officials; (2) persons chosen by an elected official to be on

such official’s personal staff; (3) “appointee[s] on the policy making level”; and

(4) persons serving as an immediate adviser to the elected official with respect to

the constitutional exercise of the powers of the official’s office. 42 U.S.C.

§ 2000e(f). 1

       Crumpacker was not an elected official, nor was her position at KDHR on

the personal staff of the Governor. KDHR does not allege that Crumpacker was

an immediate adviser to the Governor or any other elected official with respect to

the exercise of their powers of office. Thus, we are concerned exclusively with



       1
           The full text of 42 U.S.C. § 2000e(f) provides:

                The term “employee” means an individual employed by an employer,
                except that the term “employee” shall not include any person elected
                to public office in any State or political subdivision of any State by
                the qualified voters thereof, or any person chosen by such officer to
                be on such officer’s personal staff, or an appointee on the policy
                making level or an immediate adviser with respect to the exercise of
                the constitutional or legal powers of the office. The exemption set
                forth in the preceding sentence shall not include employees subject to
                the civil service laws of a State government, governmental agency or
                political subdivision. W ith respect to employment in a foreign
                country, such term includes an individual who is a citizen of the
                United States.

       Id. (emphasis added).

                                           -6-
the third exemption: for an “appointee on the policy making level.” 42 U.S.C.

§ 2000(e)(f).

                                        1.

      This is not the first time w e have addressed the requirements for Title VII’s

policy maker exemption. In Anderson v. Albuquerque, 690 F.2d 796 (10th Cir.

1982), we held that a Title VII plaintiff falls within this exemption only if

“appointed by an elected official to a policy making position.” Id. at 800

(emphasis added). In that case w e concluded, moreover, that an elected official’s

participation in the selection process alone would not demonstrate compliance

with the appointment requirement, especially where the employee did not work

with the elected official in the “intimate and sensitive association contemplated

by [Congress].” Id. In reaching this result, we pointed to Congress’s explanation

of the scope of the exemption:

      it is the intention of the conferees to exempt elected officials . . . and
      persons appointed by such elected officials as advisors or to
      policym aking positions at the highest levels of the departments or
      agencies of State or local governments, such as cabinet officers, and
      persons with comparable responsibilities at the local level.

Joint Explanatory Statement, 1972 U.S.C.C.A.N. 2137, 2179–80. 2

      2
       Other courts which have considered this exception agree that the
appointment must be made by an elected official. See, e.g., Tranello v. Frey, 962
F.2d 244, 248–51 (2d Cir. 1992); Rutland v. M oore, 54 F.3d 226, 230 (5th Cir.
1995); Butler v. N.Y. State Dept. of Law, 211 F.3d 739, 747–48 (2d Cir. 2000);
E.E.O.C. v. M assachusetts, 858 F.2d 52, 55–56 (1st Cir. 1988). In Gregory v.
Ashcroft, the late Justice White also specifically endorsed this view in a
                                                                           (continued...)

                                             -7-
      Accordingly, to be exempt from Title VII’s protections, Crumpacker must (1)

have been appointed by an elected official, and (2) acted as a policy maker. In light

of this precedent, KDHR has not argued that an appointment implicating Title VII’s

policy maker exception could be made by someone other than an elected official.

                                        2.

      KDHR makes two arguments based on K ansas law that Crumpacker is a

political appointee of the Governor. First it argues that Crumpacker was an

unclassified employee, not subject to traditional civil service protections under state

law and should therefore be considered to be exempt from Title VII’s protections.

Second, it argues that the G overnor’s consent to her appointment by the Secretary

satisfies the policy maker exception.

      Crumpacker’s status as an unclassified employee under state law is a

necessary predicate, but not determinative of her exemption from Title VII

protection under federal law. Title VII explicitly provides that persons subject to a

state’s civil service laws may not be excluded from Title VII protections, 42 U.S.C.

§ 2000e(f) (“The exemption . . . shall not include employees subject to the civil




      2
      (...continued)
concurrence joined by Justice Stevens. 501 U .S. 452, 481–82 (1991) (W hite, J.
concurring).

                                             -8-
service laws. . . .”). 3 But the converse is not also true— every unclassified employee

is not necessarily exempt from the Act.

      KDHR’s second argument— the Governor’s consent required by Kansas

statute constitutes an appointment— is also ultimately unpersuasive. Section 75-

5702 of the Kansas code requires that a division director be appointed by the

Secretary of KDHR “with the consent of the governor.” 4 Kansas argues the

statutory requirement that the Governor “consent” to Crumpacker’s appointment

means functionally that every employee subject to the provision is appointed by the




      3
        It is also the case that an individual’s exemption from state civil service
laws is cited by the EEOC as an indication that the individual is not protected by
Title VII. See EEOC Compliance M anual § 2-III A-5.
      4
       Kan. Stat. Ann. § 75-5702 provides:
      The secretary of labor may appoint, with the consent of the governor, one
      public information officer, one or m ore division directors, one personal
      secretary and one special assistant, all of whom shall serve at the pleasure
      of the secretary of labor, shall be in the unclassified service under the
      Kansas civil service act and shall receive an annual salary fixed by the
      secretary of labor with the approval of the governor. The secretary of labor
      also may appoint such other officers and employees as are necessary to
      enable the secretary to carry out the duties of the office of the secretary and
      the department of labor. Except as otherwise specifically provided by law ,
      such officers and employees shall be within the classified service under the
      Kansas civil service act. All personnel of the department of labor shall
      perform the duties and functions assigned to them by the secretary or
      prescribed for them by law and shall act for and exercise the powers of the
      secretary of labor to the extent authority to do so is delegated by the
      secretary.
Id. (emphasis added).

                                          -9-
Governor. 5 W e agree that this statutory language is relevant to our inquiry. W e

conclude, however, that an analysis of the statute does not yield the conclusion that

Crumpacker w as appointed by the Governor.

      To determine whether a person is appointed by an elected official under Title

VII is a two-step process. The first step is to decide the meaning of applicable

Kansas law. If the state law is clear, our analysis ends. If the law is indeterminate,

we must look to the underlying facts surrounding the appointment to help answer the

question.

      W hen attempting to answer a question of state substantive law, we look to the

statutory text or interpretations of the text by the state’s highest court. Peoples v.

CCA Det. Ctrs., 422 F.3d 1090, 1104 n.7 (10th Cir. 2005). Here, we are presented

with a statute on which no Kansas court has spoken. Therefore, we are left to

interpret § 75-5702 as a matter of first impression.

      The Department asks us to read § 75-5702 as vesting ultimate appointment

power in the Governor for purposes of Title VII, interpreting the statute’s “consent”

requirement as the sine qua non of the appointment power. W e disagree. The plain

      5
         It bears mentioning that the K ansas C onstitution provides for a unitary
executive. Kansas Const. Article I, Clause 3. This makes the Kansas system
analogous to the federal system. In the context of the federal government, it is
w ell established that A rticle II vests appointment authority in the President. No
circuit court has had occasion to consider an argument that where a state
constitution mandates a unitary executive, all state appointment authority not
constitutionally assigned to another elected constitutional officer must be
presumed to lie w ith that executive. KDHR has not made such an argument in
this case, and we therefore do not consider it.

                                          -10-
language of the statute vests the appointment power with the Secretary of KDH R,

who is not an elected official. Simply put, even if we agree the “consent” provision

requires some level of participation by the Governor in Crumpacker’s appointment,

it does not subsume the Secretary’s ultimate appointment responsibility in the hiring

process. 6 W hile it is clear the Governor’s office has some role in personnel

selection at the sub-cabinet level, § 75-5702 nonetheless assigns to the Secretary,

not the G overnor, the responsibility to “appoint” division directors. 7

      Nevertheless, the nature of an appointment for purposes of Title VII is a

question of federal law, and we cannot deny that § 75-5702 allows for some degree

of involvement by an elected official in the appointment process. This uncertainty

requires w e turn to an analysis of how the statute w as actually implemented in this

case. W e do so noting that where a state statute unambiguously and unqualifiedly




      6
        KDHR also argues that the term “consent” denotes a degree of action
inconsistent with passive approval. Even so, as we discuss below, the
appointment here was ultimately made by the Secretary, and the record does not
suggest active involvement by the Governor in Crumpacker’s selection.
      7
        KDHR further contends that the “consent” required from the Governor is
equivalent to the advice and consent of the Senate to Presidential appointments.
This analogy is unhelpful to KDHR: it is indisputable that federal appointment
power is vested in the President. The Senate’s advice and consent power,
exercised in the confirmation process, does not turn Presidential appointees into
Senatorial appointees.

                                           -11-
vests the appointment power in a specific elected or non-elected official, we will not

construe the statute to say otherwise. 8

      Despite the noted ambiguity, the statute itself weighs in favor of a conclusion

that Crumpacker was not appointed by the Governor. The record also breaks in

Crumpacker’s favor. It shows that Secretary Franklin, not the G overnor,

interview ed and appointed Crumpacker for the director’s position. Secretary

Franklin was, by all accounts at trial, the person who took note of Crumpacker’s

perform ance in the G overnor’s office and who asked her to apply for the KDHR

position. Franklin made the decision to hire Crumpacker, and in the end, made the

decision to fire her. Nothing suggests the G overnor compelled Franklin to hire

Crumpacker, or otherwise actively orchestrated her interview and appointment to the

position. Nor did the Governor control her day-to-day job responsibilities, monitor

her performance, or insist on her eventual firing.

      KDHR, however, maintains that the evidence presented at trial compels a

different conclusion, citing four pieces of evidence: (1) Secretary Franklin’s letter to

the G overnor requesting permission to appoint Crumpacker; (2) the G overnor’s

approval of the pool of candidates for Crumpacker’s position; (3) the G overnor’s

later appointment of C rumpacker to the KW IP task force as a result of her KDH R

      8
        Nothing prevents K ansas from expressly exempting sub-cabinet officials
like Crumpacker from Title VII under state law. It would be a simple m atter to
modify the scheme to require a direct gubernatorial appointment of such officials,
and, so long as the Governor follows the statute and these employees are engaged
in a policy making role, the Title VII exemption will apply.

                                           -12-
directorship; and (4) Franklin’s request that the G overnor agree to Crumpacker’s

firing.

          W e disagree that these facts mandate the conclusion that Crumpacker was a

gubernatorial appointee. To the contrary, the record is clear that Franklin asked

Crumpacker to apply for the position, personally selected Crumpacker from the pool

of candidates, interview ed her for the position, and sought the Governor’s “consent”

as required under § 75-5702. Franklin then appointed her, as was his statutory

prerogative. Crumpacker’s KW IP duties, while certainly pursuant to a gubernatorial

appointment, were nonetheless derivative of her responsibilities at KDHR.

Crumpacker served on KW IP because of her KDHR job, not vice-versa. 9 M oreover,

though Franklin testified he asked the Governor’s advice regarding his

dissatisfaction with Crumpacker, the G overnor took no part in Crumpacker’s

termination. Finally, § 75-5702 plainly states that Crumpacker served “at the

pleasure of the secretary,” and it is the Secretary who made the decision to fire her.

Based on this evidence, we cannot find that the district court erred in concluding

that Franklin, not the Governor, appointed Crumpacker. W hile we can imagine a

case where the noted statutory ambiguity would allow a record of active

          9
        KDHR maintians it is undisputed that the Governor appointed Crumpacker
to the KW IP task force. Assuming that this is a qualifying appointment by an
elected official under Title VII, we nonetheless note that Crumpacker’s hybrid
duties arising from KW IP and KDHR do not preclude a Title VII lawsuit arising
out of Crumpacker’s duties exclusively attributable to KDHR. It is clear from
this record that Crumpacker’s KDHR position was her primary position and her
KW IP responsibilities were an ancillary to her K DHR work.

                                            -13-
involvement by the Governor to render an appointment gubernatorial, this is not that

case.

        Accordingly, we agree with the district court that neither Kansas law nor the

facts presented at trial compel a finding that Crumpacker was appointed by an

elected official as required under 42 U.S.C. § 2000e(f). Crumpacker is, therefore,

not subject to the policy maker exemption to Title VII, and her discrimination

claims were properly considered by the jury. As a result of this conclusion, we need

not address the second requirement of the exemption— whether her duties w ere

actually those of a policy maker.

                                       B.

        KDHR’s subsidiary argument is that the jury verdict intrudes on core state

governmental functions and is, therefore, inconsistent with the Eleventh

Amendment, citing to Gregory v. Ashcroft, 501 U.S. 452, 467 (1991) (holding that

federal law does not preempt M issouri’s mandatory judicial retirement age). W e

rejected this argument in Crumpacker I and reject it here for the same reasons. See

338 F.3d 1163 (10th Cir. 2003).

                                    IV. Fees

        KDHR also appeals the district court’s award of attorneys’ fees and costs

pursuant to 42 U.S.C. § 2000e-5(k). Typically, we review a district court’s award of

attorneys’ fees for abuse of discretion. Homeward Bound, Inc. v. Hissom M em ’l

Ctr., 963 F.2d 1352, 1355 (10th Cir. 1992). W e review de novo, however, any

                                            -14-
determination of jurisdiction necessary for the entry of a fee award as well as any

statutory interpretation which provides the basis for such an award. Hoyt v. Robson

Cos., Inc., 11 F.3d 983, 984 (10th Cir. 1993).

      KDHR raises two arguments. First, it maintains the district court lacked

jurisdiction to award fees and expenses in connection with the interlocutory appeal

in this case. See Crumpacker I, 338 F.3d 1163 (10th Cir. 2003). Second, KD H R

contends that the district court erred in aw arding fees for six billing entries where

the fee explanation was blacked out so as to render it illegible. W e address each

argument in turn.

                                        A.

      It is the law of this circuit that “[a]bsent an explicit [statutory] provision, in

order for us to properly exercise our discretion, an application for appeal-related

attorneys’ fees must first be made to our court.” Hoyt, 11 F.3d at 985. Hoyt was

decided in response to a prevailing plaintiff’s application for appeal-related fees in

district court after successfully defending an appeal on the merits before this court.

Id. at 984. The district court in Hoyt denied the plaintiff’s request for appeal-related

fees (pursuant to a contract which provided for fee-shifting) for lack of jurisdiction,

holding that the plaintiff was required to ask this court for those fees. W e affirmed.

Id.

      Arguably, an interlocutory appeal is distinguishable from the final appeal on

the merits addressed in Hoyt. Crumpacker could not have asked this court for

                                             -15-
appeal-related fees at the time of the interlocutory appeal because she was not yet a

“prevailing party” as required under Title VII, and thus was not yet entitled to any

fee award. See 42 U.S.C. § 2000e-5(k) (allowing fees only for a Title VII plaintiff

who prevails on the merits). The district court embraced similar logic in granting

Crumpacker fees for the interlocutory appeal. Holding that it has jurisdiction to

award fees, the district court cited to the only district court case we are aware of that

has addressed this issue, Central States Area Pension Fund v. Central Cartage

Company, 992 F. Supp. 980, 983 (N.D. Ill. 1998). In Central States, the district

court determined it had jurisdiction to award fees for an interlocutory appeal,

specifically distinguishing our decision in Hoyt on the basis of the difference

between an interlocutory appeal, in which the district court maintains jurisdiction

over matters not directly related to the appeal, and a final appeal on the merits

which strips the district court of all jurisdiction. 992 F. Supp. at 983 n.5. 10

      In the end, while we are sympathetic to such logic, the rule of Hoyt binds us.

W e, therefore, hold that appeal-related fees, including those incurred in an

interlocutory appeal, must generally be awarded by us. In drawing this conclusion,

however, we likewise hold that parties who prevail on interlocutory review in this



      10
         At least one other circuit court has encountered a similar situation. In
Flanagan v. Inland Empire Electrical Workers Pension Plan & Trust, an ERISA
plaintiff successfully appealed a district court’s award of summary judgment.
The Ninth Circuit held it could not yet award attorney’s fees for the appeal, but
conditionally allowed the district court to award fees if and when the plaintiffs
established an ERISA violation. 3 F.3d 1246, 1253–64 (9th Cir. 1993).

                                            -16-
court, and who subsequently become prevailing parties under Title VII or another

fee-shifting provision at the conclusion of merits proceedings, are implicitly entitled

to reasonable attorneys’ fees related to the interlocutory appeal. The precise amount

of these fees may be determined in the first instance by the district court considering

trial-related fees in accordance with our longstanding practice. Whittington v.

Nordam Group, Inc., 429 F.3d 986, 1001–02 (10th Cir. 2005) (citing Hoyt, 11 F.3d

at 985). Any dispute as to the propriety or amount of fees related to an interlocutory

appeal determined by the district court can be resolved on appeal to this court.

Furthermore, because appeal-related fees are issued at the discretion of this court,

our review of such fees determined by the district court will be de novo.

      Accordingly, we affirm the district court’s aw ard of fees for the interlocutory

appeal. Crumpacker is entitled as the prevailing party in this Title VII litigation for

fees for both her interlocutory and direct appeals.

                                        B.

      KDHR also argues that the district court erred when it awarded Crumpacker

fees for six billing entries for which the fee explanation from her attorneys was

blacked out so as to make it unreadable. 11 W e find no abuse of discretion here. It is

true that we require billing records submitted in connection with a fee request to

“. . . reveal, for each lawyer for whom fees are sought, all hours for which



      11
         W e note that these six entries are not alleged to be related to the
interlocutory appeal.

                                             -17-
compensation is requested and how those hours were allotted to specific tasks. . . .”

Ram os v. Lam m, 713 F.2d 546, 553 (10th Cir. 1983). Yet the Supreme Court has

held only that where the “documentation of hours is inadequate, the district court

may reduce the award accordingly.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)

(emphasis added). Here, the district court specifically found that “the ‘blacked out’

entries cause [no] problems in determining the validity or propriety of the w ork

performed.” Fee Order at 4–5. The law does not require the district court to reduce

its fee award where it finds no difficulty in evaluating the propriety of an attorney’s

billing. W e cannot say the district court abused its discretion in this regard and

therefore affirm the district court’s award of fees for the six blacked out entries.

                                    V. Conclusion

      For the foregoing reasons, we AFFIRM the district court.




                                         -18-
