                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JAN 6 1998
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    SHERRY ANN WOOD,

                Plaintiff-Appellant,

    v.                                                 No. 96-6337
                                                 (D.C. No. CIV-92-243-L)
    RUBYE L. HARRINGTON; LILLIE                        (W.D. Okla.)
    MAE SMALLWOOD, individually
    and in her representative capacity;
    EFFECTIVE SECRETARIAL
    SERVICES, INC., an Oklahoma
    corporation; EFFECTIVE SUPPORT
    SERVICES, INC., dba Effective
    Secretarial Support Services, Inc.; dba
    ESS, Inc.,

                Defendants-Appellees.




                              ORDER AND JUDGMENT *



Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, ** District Judge.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable J. Thomas Marten, District Judge, United States District
Court for the District of Kansas, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      This is the second appeal in plaintiff’s suit arising out of her retaliatory

discharge from employment with Effective Secretarial Services, Inc. and Effective

Support Services, Inc. Defendant Rubye L. Harrington is the only defendant to

respond on this appeal.

      The past procedural history is set out in the first appeal and will only be

summarized here. See Wood v. Harrington, No. 95-6192, 1996 WL 196598,

at **1 (10th Cir. Apr. 24, 1996) (order and judgment). Plaintiff asserted several

claims against defendants, including claims under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the Service Contract Act of

1965, 41 U.S.C. §§ 351-58, in conjunction with the Fair Labor Standards Act

(FLSA), 29 U.S.C. §§ 201-19. Her claims were tried twice. The first jury found

in her favor, awarding her reinstatement to her job with defendants and

$42,894.00 for wages lost up to that point and emotional distress. A judgment to

that effect was filed on April 20, 1993. Defendants moved for and were granted a

new trial. The first trial judge then recused, and the case was reassigned.

Plaintiff moved for reconsideration of the grant of a new trial, which was denied


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by the new trial judge. By this time, defendants Smallwood and Effective

Secretarial Services, Inc. were in bankruptcy, and Effective Support Services,

Inc., allowed a default judgment to be entered against it. Plaintiff’s claims were

therefore retried solely against Ms. Harrington. 1 The second jury also found in

plaintiff’s favor. Ms. Harrington moved for and was granted judgment as a matter

of law. Accordingly, a judgment in favor of plaintiff against Effective Support

Services, Inc. alone was entered on April 5, 1995. Plaintiff then appealed, raising

points of error related to both trials.

      In that first appeal, we ordered the judgment from the second trial to be

vacated because defendants’ motion for a new trial had been granted on an

impermissible ground, and ordered the judgment from the first trial to be

reinstated. See Wood, 1996 WL 196598, at **2-**3 (citing MacCuish v. United

States, 844 F.2d 733, 735-36 (10th Cir. 1988)). We held that plaintiff’s claims of

error related to the second trial were moot.

      On remand, the district court reinstated the April 20, 1993 judgment, and

then considered plaintiff’s motions for equitable relief in the form of additional

back pay, liquidated damages, and an interim award of attorney’s fees. In its

subsequent judgment, the court denied plaintiff additional back pay because it


1
       The order and judgment in the first appeal erroneously stated that
plaintiff’s claims were retried against both Ms. Harrington and Effective Support
Services, Inc. See Wood, 1996 WL 196598, at **1.

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found no legal basis to support such an award, but awarded plaintiff “$42,894.00

as liquidated damages and $24,638.50 as attorney’s fees, with interest thereon at

the rate allowed by law from this date until paid.” Appellant’s App. at 42.

      Plaintiff now appeals from the district court’s judgment awarding

liquidated damages and attorney’s fees. She claims the district court erred: (1) in

denying her additional back pay; (2) in denying her attorney’s fees for the second

trial and first appeal; and (3) in reducing the hours and hourly rates requested by

her attorney and his legal assistant.

      Plaintiff sought equitable relief in the form of additional back pay because

she has never been reinstated to her job with defendants, as directed by the

reinstated April 20, 1993 judgment. In cases of retaliation by an employer against

an employee, such equitable relief is permitted by the FLSA, 29 U.S.C. § 216(b),

which was cited in plaintiff’s district court brief. The district court therefore

erred in stating that “plaintiff has presented no authority that would permit or

require such an award.” Appellant’s App. at 40 (District Court’s Aug. 26, 1996

order, at 2). Moreover, despite the district court’s discretion in fashioning an

award of back pay, to award nothing at all is inappropriate in these circumstances.

District courts have “‘the historic power of equity to provide complete relief in

light of the [FLSA’s] purposes.’” Atchison, Topeka & Santa Fe R.R. v. Lennen,

732 F.2d 1495, 1507 (10th Cir. 1984) (quoting Mitchell v. Robert DeMario


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Jewelry, Inc., 361 U.S. 288, 292 (1960)). Plaintiff substantially prevailed in both

trials and on the first appeal. The second trial was granted and allowed to

proceed in contravention of controlling authority, which was cited to the court in

plaintiff’s motion for reconsideration. The delay in reinstatement caused by the

second trial and first appeal was not plaintiff’s fault, and she should not be

penalized for it.

      We review an award of attorney’s fees for abuse of discretion. See

Bankston v. Illinois, 60 F.3d 1249, 1255 (7th Cir. 1995) (FLSA case). The

district court abused its discretion in denying plaintiff attorney’s fees for the

second trial. The FLSA allows attorney’s fees “in addition to any judgment

awarded.” 29 U.S.C. § 216(b). Plaintiff has a judgment in this action. Vacating

the second judgment did not change that, as the first judgment, also in plaintiff’s

favor, was reinstated. We therefore will remand for a determination of fees for

the second trial.

      We affirm the district court’s decision not to award appeal-related fees,

however, because the district court had no jurisdiction to award them. See Hoyt

v. Robson Cos., Inc., 11 F.3d 983, 985 (10th Cir. 1993); International Ass’n of

Fire Fighters, Local 2203 v. West Adams County Fire Protection Dist., 877 F.2d

814, 821 (10th Cir. 1989) (FLSA case).

      Finally, plaintiff argues, somewhat redundantly, that the district court erred


                                          -5-
in reducing the hours and hourly rates requested by her attorney and his legal

assistant. The district court’s determinations of the reasonable number of hours

to be compensated and the reasonable hourly rates to be used are reviewed for

abuse of discretion. See Jane L. v. Bangerter, 61 F.3d 1505, 1510 (10th Cir.

1995). The district court reduced the hours and hourly rates requested by

plaintiff’s attorney and his legal assistant because: (1) it lacked jurisdiction to

award appeal-related fees, so hours spent on the first appeal were subtracted;

(2) this court’s previous order and judgment rendered the second trial a nullity, so

hours spent on the second trial were subtracted; and (3) the rates requested

exceeded those the district court found reasonable in a companion case. See

Appellant’s App. at 40-41 (District Court’s Aug. 26, 1996 order, at 2-3.) As

discussed above, hours for the first appeal were appropriately subtracted, but the

vacation of the second judgment is not a valid reason to deny plaintiff fees for

time spent to prosecute the second trial. Plaintiff has not shown that the district

court abused its discretion in reducing the hourly rates claimed by her attorney

and his legal assistant. We affirm the district court’s determination of the rates to

be awarded, but will remand for recalculation of the hours to be compensated.

      We note that Ms. Harrington argues that because she was not named in

plaintiff’s EEOC charge, the district court lacked jurisdiction to try plaintiff’ Title

VII claims against her, and this court lacks jurisdiction over the appeal. See


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Romero v. Union Pac. R.R., 615 F.2d 1303, 1311-12 (10th Cir. 1980) (explaining

four-part test used to determine whether party not named in EEOC charge may be

sued under Title VII). We find it unnecessary to decide this issue. First, the

judgment for liability is outside the scope of this appeal. Next, liquidated

damages were awarded to plaintiff under the FLSA; therefore, Ms. Harrington’s

Title VII jurisdictional argument cannot affect this award. See Appellant’s App.

at 40 (District Court’s Aug. 26, 1996 order, at 2 (citing FLSA cases to support

liquidated damages award)). Furthermore, as we have discussed above, the other

relief plaintiff seeks from Ms. Harrington is available under the FLSA.

Ms. Harrington does not challenge this court’s jurisdiction under the FLSA. As a

result, her challenge to this court’s jurisdiction under Title VII is unavailing even

if it is correct.

       The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED in part and REVERSED in part, and the case is

REMANDED for further proceedings consistent with this order and judgment.



                                                     Entered for the Court



                                                     J. Thomas Marten
                                                     District Judge



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