                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                             FOR THE TENTH CIRCUIT                            November 7, 2016
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
LAURA RIDGELL-BOLTZ,

      Plaintiff - Appellant,

v.                                                            No. 15-1361
                                                 (D.C. No. 1:10-CV-00252-RPM-KLM)
CAROLYN W. COLVIN, Acting                                      (D. Colo.)
Commissioner, United States Social
Security Administration,

      Defendant - Appellee.
                      _________________________________

                                      ORDER
                         _________________________________

Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

       This matter is before the court on the petition for rehearing and rehearing en banc

filed by Ms. Ridgell-Boltz. Upon consideration of the petition, the original panel grants

panel rehearing in part and only to the extent of the changes made to page 11 of the

attached revised order and judgment. The clerk is directed to file the revised decision

nunc pro tunc to the original filing date of August 10, 2016.

       In granting limited panel rehearing with respect to the petition, we note and
emphasize that the portion of the petition seeking en banc review remains pending. That

part of the petition remains under advisement.


                                            Entered for the Court



                                            ELISABETH A. SHUMAKER, Clerk




                                            2
                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          August 10, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
LAURA RIDGELL-BOLTZ,

      Plaintiff - Appellant,

v.                                                          No. 15-1361
                                               (D.C. No. 1:10-CV-00252-RPM-KLM)
CAROLYN W. COLVIN, Acting                                    (D. Colo.)
Commissioner, United States Social
Security Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

      Plaintiff Laura Ridgell-Boltz appeals the final judgment of the district court

dismissing her hostile-work-environment claim and awarding only about half of the

attorney fees and costs that she requested. Exercising jurisdiction under 28 U.S.C.

§ 1291, we reverse in part, affirm in part, and remand the case with directions.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I. Background

      Ms. Ridgell-Boltz sued her employer, the United States Social Security

Administration, alleging that she was subjected to a hostile work environment on

account of her gender and age, and that she was wrongfully discharged in retaliation

for filing a discrimination complaint. The district court dismissed the age-based

claims before trial, and the remaining claims were presented to a jury. At the close

of Ms. Ridgell-Boltz’s case-in-chief, the agency moved for judgment as a matter of

law. The district court granted the motion in part, and only the wrongful-discharge

claim went to the jury, which awarded Ms. Ridgell-Boltz $19,000 in damages.

      On appeal, this court determined that the hostile-work-environment claim

should have gone to the jury, and the case was remanded to the district court for

further proceedings. See Ridgell-Boltz v. Colvin, 565 Fed. App’x 680 (10th Cir.

2014) (unpublished order and judgment).

      Both parties and the district court assumed initially that this court’s order

required a new trial limited to the hostile-work-environment claim. However, the

district court on its own initiative subsequently dismissed the claim a second time,

concluding that Ms. Ridgell-Boltz had already “been compensated for the emotional

injury she sustained and that it was not feasible to attempt to recover additional

damages at a second trial.” Aplt. App., Vol. 2 at 563. The same day, the court issued

its order awarding attorney fees and costs. This appeal followed.




                                           2
II. Analysis

      Ms. Ridgell-Boltz argues the district court erred by dismissing (again) her

hostile-work-environment claim and by denying some of her requested attorney fees

and costs without adequate explanation. She also argues the case should be assigned

to a different judge on remand and that she is entitled to attorney fees for this appeal.

A. Hostile-Work-Environment Claim

      Because Ms. Ridgell-Boltz’s hostile-work-environment claim was dismissed

mid-trial, the jury heard the evidence she had to support the claim, including the

evidence of damages she allegedly suffered as a result of the hostile work

environment. After the district court decided to dismiss all but the

wrongful-discharge claim, it informed the jury:

      Members of the jury, during the time of this recess, and after discussing
      the case with counsel, I have made some rulings on points of law that
      will—that has narrowed the focus of this case so that the ultimate
      question for you to decide at the end of the trial will be whether the
      Plaintiff, Laura Ridgell-Boltz, was removed from her position with the
      Social Security Administration, as counsel, in retaliation for her having
      supported the claims of her coworkers of age and gender discrimination
      in the Plaintiff’s own claim. So the question is the termination of
      employment, was it retaliatory.

Aplt. App., Vol. 1 at 293. During closing argument, the agency’s counsel

emphasized that the jury was to consider only the wrongful-termination claim:

      [O]n Thursday, after Ms. Ridgell-Boltz finished putting on all her
      evidence and her case, His Honor told you that he narrowed the scope of
      this case. Gone were the first three questions that I discussed with you
      last Monday. There were only four; the first three are out, and so that
      leaves only one question left in this case. Was Ms. Ridgell-Boltz fired
      because of her EEO activities? That’s the only question you have to
      decide when you go back to the jury room now. No more harassment,

                                            3
       hostile work environment, none of that. None of everything that
       Ms. Ridgell-Boltz focused on for the first Monday, Tuesday,
       Wednesday, and almost all of Thursday in this case.

Aplt. App., Vol. 2 at 303-04. Ms. Ridgell-Boltz’s counsel argued in closing that the

measure of her damages might be calculated based on the number of days between

when she was fired and when she resumed working at the agency:

       Is it worth that to feel bad all day about yourself as a person because of
       what your boss did to you? Is it bad to feel that way at night? If you
       agree with the number, give her $200 a day for the whole period of time
       that she was out of work, 605 days, $200 a day. That’s $120,000. Now,
       maybe you agree with that number and maybe you don’t. Maybe you
       don’t even like that approach. But there’s got to be some way you can
       compensate her for the distress she went through.

Id. at 329-30. And specifically with respect to damages, the district court instructed

the jury:

       If you find that the plaintiff was removed from her employment in
       retaliation for her protected conduct, then you must determine an
       amount that is fair compensation for the plaintiff’s losses. You may
       award compensatory damages for injuries that the plaintiff proved were
       caused by the defendant’s wrongful conduct. The damages that you
       award must be fair compensation, no more and no less.

Id. at 313-14.

       On remand from this court, the district court reviewed the evidence the jury

heard in support of Ms. Ridgell-Boltz’s claim for damages, focusing on the testimony

of her psychologist. The psychologist had testified that Ms. Ridgell-Boltz suffered

from an adjustment disorder with anxiety and depression before she was fired and

post-traumatic stress disorder after she was fired. Id. at 328-29. Noting that the jury

awarded Ms. Ridgell-Boltz $5,000 for “emotional distress, pain suffering,


                                           4
embarrassment, humiliation, or damages to reputation that she experienced,”

Aplt. App., Vol. 1 at 36, the district court concluded that she had already been

compensated for the emotional injury she sustained, essentially deeming the

hostile-work-environment claim duplicative and moot. Ms. Ridgell-Boltz argues this

was error, and we agree.

      We review de novo the district court’s dismissal of a claim on unspecified

grounds. See Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004).

We also review de novo questions of mootness. Rio Grande Silvery Minnow v.

Bureau of Reclamation, 601 F.3d 1096, 1122-23 (10th Cir. 2010).

      To prevail on a hostile-work-environment claim, a plaintiff must prove that

she was offended by the work environment and that a reasonable person would

likewise be offended. Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950, 957

(10th Cir. 2012). Relevant factors for determining whether such an environment

exists are “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Id. at 958 (internal

quotation marks omitted). In contrast, a wrongful-termination claim based on

retaliation requires a plaintiff to establish that she engaged in a protected activity and

that there is a causal connection between that activity and her termination. See

O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1252-53 (10th Cir. 2001). These

claims are meant to address different types of injuries—those stemming from



                                            5
enduring a hostile work environment and those stemming from being terminated

unfairly.

      Although the jury heard the evidence supporting Ms. Ridgell-Boltz’s

hostile-work-environment claim, it was instructed to reach a decision and submit a

verdict form based solely on her termination. “We presume a jury has followed the

court’s instructions.” Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1306 (10th Cir.

2003). In the absence of any evidence to rebut this presumption, we must conclude

that an award of damages on the hostile-work-environment claim would not

necessarily be duplicative of those awarded on the wrongful-termination claim. To

the contrary, her termination provides a logical and appropriate endpoint for when

damages due to the hostile work environment ended and those due to the termination

began. To fully compensate Ms. Ridgell-Boltz for the separate damages attributable

to these distinct injuries, she must be permitted to seek relief for her

hostile-work-environment claim in addition to the relief she already obtained for her

wrongful termination. Based on the differences between these two types of claims,

we reject the notion that the relief she obtained thus far has rendered her

hostile-work-environment claim moot. See Rio Grande Silvery Minnow, 601 F.3d

at 1110 (“The crucial question [in determining mootness] is whether granting a

present determination of the issues offered will have some effect in the real world.”

(internal quotation marks omitted)). Therefore, we reverse the district court’s

dismissal of this claim, and remand the case with directions to hold a trial on it.



                                            6
B. Attorney Fees and Costs

      Ms. Ridgell-Boltz argues the district court erred by denying certain portions of

her fee request and by reducing the overall amount awarded by 45% in an effort to

impose “proportionality” between the services performed and the results achieved in

the case. We disagree in part and agree in part.

      We generally review an attorney fees award for an abuse of discretion.

Browder v. City of Moab, 427 F.3d 717, 719 (10th Cir. 2005). “In reaching that

decision, we review de novo whether the district court applied the correct legal

standard, and we review its findings of fact for clear error.” Id.

      A claimant must prove two elements to obtain attorney fees: “(1) that the

claimant was the ‘prevailing party’ in the proceeding; and (2) that the claimant’s fee

request is ‘reasonable.’” Robinson v. City of Edmond, 160 F.3d 1275, 1280

(10th Cir. 1998). Ms. Ridgell-Boltz’s status as a prevailing party is not at issue;

therefore, we must assess only the reasonableness of the attorney fees award. “To

determine the reasonableness of a fee request, a court must begin by calculating the

so-called lodestar amount of a fee, and a claimant is entitled to the presumption that

this loadstar amount reflects a reasonable fee.” Id. at 1281 (internal quotation marks

omitted). When, as in this case, a prevailing party does not succeed on all of her

claims, two additional considerations apply: “(1) whether the plaintiff’s successful

and unsuccessful claims were related; and (2) whether the plaintiff’s overall level of

success justifies a fee award based on the hours expended by plaintiff’s counsel.”

Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1177 (10th Cir. 2010).

                                            7
1. OFO Fees

      Ms. Ridgell-Boltz first appealed her termination to the Merit Systems

Protection Board (MSPB). There she was represented by the same counsel who

continue to represent her in this case, and although she was reinstated and received

back pay, her claims based on discrimination and retaliation were denied. See Boltz

v. Soc. Sec. Admin., 111 M.S.P.R. 568 (2009). At that juncture, she had the option of

either appealing to the Office of Federal Operations (OFO) or bringing her claims in

the district court. She chose the former but was unsuccessful. She then brought this

action in federal court. She argues that the district court erred by denying her

attorney fees associated with the OFO appeal. We disagree.

      Ms. Ridgell-Boltz cites no authority for the proposition that a party who

unsuccessfully petitions through an optional administrative process is entitled to an

award of attorney fees. See Barrett v. Salt Lake Cty., 754 F.3d 864, 870 (10th Cir.

2014) (contrasting a Title VII plaintiff who must exhaust administrative grievance

procedures as a precondition to bring suit in court with one who chooses to

participate in an employer’s optional grievance process, and concluding that the latter

is not entitled to the fees incurred along the way). Moreover, although she ultimately

succeeded on one of her claims in federal court, she cannot argue that she was a

prevailing party with respect to the OFO proceedings. See Robinson, 160 F.3d

at 1280. We conclude that the district court did not err or abuse its discretion by

denying these fees.



                                           8
2. Appellate Fees

       Ms. Ridgell-Boltz also argues the district court erred by denying her fees

associated with her first appeal to this court. We disagree. She did not ask this court

to award her appellate fees. The district court does not have jurisdiction to award

appellate attorney fees in the first instance. Hoyt v. Robson Cos., 11 F.3d 983, 985

(10th Cir. 1993); see also Flitton, 614 F.3d at 1179 (declining to extend “a narrow

exception for interlocutory appeal-related fees in cases brought under Title VII or

other fee-shifting statutes”).

3. Costs Taxed

       Ms. Ridgell-Boltz argues that the district court erred by denying her motion for

review of costs taxed in its order awarding attorney fees and costs. The order

provides no explanation for why her objections to the costs taxed were denied.

“Generally, district courts must give an adequate explanation for their decision

regarding requests for attorney’s fees, otherwise we have no record on which to base

our decision.” Browder, 427 F.3d at 721. On remand, the district court should

specifically address her objections to the costs taxed.

4. Lodestar Analysis

       As noted above, determining the lodestar amount should be the starting point

for assessing the reasonableness of a fee request. Robinson, 160 F.3d at 1281. The

district court acknowledged but seemed to bypass this requirement when it stated:

             The lodestar analysis requires the court to determine the
       reasonableness of the time spent and the need for the services
       performed. To sort through all of the time records provided and match

                                           9
      the services identified with the large volume of motions filed for the
      plaintiff on which she prevailed and those which were denied would be
      an unreasonable burden on this court.

Aplt. App., Vol. 2 at 574. Instead, the court determined that a “proportionality

reduction” was appropriate and reduced the total amount of the request (less

deductions for the OFO proceedings and the appellate fees) by forty-five percent. Id.

at 575-76.

      “The record ought to assure us that the district court did not eyeball the fee

request and cut it down by an arbitrary percentage.” Robinson, 160 F.3d at 1281

(internal quotation marks omitted). We conclude that a remand is required in this

case so that the court can perform the proper analysis and because it may need to

reconsider Ms. Ridgell-Boltz’s overall level of success after a new trial on the merits

of her hostile-work-environment claim.

C. Different Judge on Remand

      Noting that the current district court judge has twice dismissed her

hostile-work-environment claim and has stated that it is “not feasible to attempt to

recover additional damages at a second trial,” Aplt. App., Vol. 2 at 563,

Ms. Ridgell-Boltz requests that we direct that the case be assigned to another district

court judge on remand. However, we do not agree that this is a case where

preserving the appearance of justice requires such an assignment. “Respectful of the

extraordinary nature of such a request, we will remand with instructions for

assignment of a different judge only where there is proof of personal bias or under

extreme circumstances.” Mitchell v. Maynard, 80 F.3d 1433, 1448 (10th Cir. 1996).

                                          10
D. Attorney Fees for This Appeal

       Citing 42 U.S.C. § 2000e-5(k), Ms. Ridgell-Boltz requests her attorney fees

and costs incurred for this appeal. However, obtaining a remand on her hostile-work-

environment claim does not make her a prevailing party under that statute. See Slade

v. United States Postal Serv., 952 F.2d 357, 362 (10th Cir. 1991) (“Plaintiff’s

successful appeal does not establish him as a prevailing party because the only relief

afforded to Plaintiff was to permit the case to go forward on the merits. Unless a

party has established his entitlement to some relief on the merits of his claims, he is

not a prevailing party entitled to an award of attorney’s fees.”); see also Rodriguez v.

Bd. of Educ., 620 F.2d 362, 367 n.1 (2nd Cir. 1980) (“Title VII’s provision for fee

awards to the ‘prevailing party,’ 42 U.S.C. [§] 2000e-5(k), is applicable only upon

victory on the merits in the trial court.”). Therefore, we deny her request.

III. Conclusion

       The district court’s order dismissing Ms. Ridgell-Boltz’s

hostile-work-environment claim is reversed, and the case is remanded with directions

to hold a new trial on this issue.

       The attorney fees order is affirmed insofar as the court declined to award fees

in connection with the OFO proceeding and the prior appeal to this court.

However, the remainder of the order is vacated, and the court is directed to conduct

a proper lodestar analysis of Ms. Ridgell-Boltz’s fee request and to reweigh the

overall success of this litigation in light of whether she prevails on her



                                           11
hostile-work-environment claim and, if so, to what extent she obtains additional

relief.

          Ms. Ridgell-Boltz’s request for reassignment of the case on remand is denied.

          Ms. Ridgell-Boltz’s request for attorney fees incurred on this appeal is denied.


                                               Entered for the Court


                                               Jerome A. Holmes
                                               Circuit Judge




                                             12
