UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PERRY R. SHASTEEN,
Plaintiff-Appellant,

v.
                                                               No. 96-2024
OLYMPUS GYM, INCORPORATED; SEVEN
CORNERS HEALTH CLUB,
INCORPORATED; DAVID WEBER,
Defendants-Appellees.

PERRY R. SHASTEEN,
Plaintiff-Appellee,

v.
                                                               No. 96-2093
OLYMPUS GYM, INCORPORATED; SEVEN
CORNERS HEALTH CLUB,
INCORPORATED; DAVID WEBER,
Defendants-Appellants.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA 95-1382-A)

Argued: July 8, 1997

Decided: August 22, 1997

Before HAMILTON and LUTTIG, Circuit Judges, and
G. Ross ANDERSON, Jr., United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Michael Bredehoft, CHARLSON & BREDEHOFT,
P.C., Reston, Virginia, for Appellant. John Paul Markovs, ADAMS,
PORTER & RADIGAN, LTD., McLean, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This is an appeal from an order awarding two-sevenths of the
requested amount of attorneys' fees and costs under the Americans
with Disabilities Act (ADA) of 1990, 42 U.S.C. § 12001 et seq. We
reverse and remand in part for further proceedings because the Dis-
trict Court used an impermissible fixed percentage mathematical
approach comparing the total number of claims in relation to those
claims that prevailed. Also, we reverse in part because Weber was not
a party to the ADA claims and therefore should not be held liable for
any attorneys' fees or nontaxable costs. Thus, we affirm in part,
reverse in part and remand for further proceedings consistent with this
opinion.

This action alleged seven causes of action. Two claims were under
the employment provisions of the ADA and the five remaining claims
under Virginia law were for wrongful termination, assault, battery,
interference with contract, and intentional infliction of emotional dis-
tress. The plaintiff claims that while he was employed as the manager
of the Seven Corners Health Club, which is owned by Olympus Gym,
Inc. and David Weber, he had two disabilities and that the defendants

                    2
refused to accommodate either disability. The plaintiff claims to suf-
fer from asthma, and further claims that in June of 1989 his condition
was complicated by the contraction of a lung infection. Plaintiff
claimed that both the asthma and the infection are disabilities. The
complaint also alleged that Defendant Weber insulted, spat upon,
punched, and generally harassed the plaintiff on many occasions.

The defendants made an offer of judgment for $50,000.00 as to all
seven counts pursuant to Fed. R. Civ. P. 68. Plaintiff accepted and
judgment was entered against the defendants on February 29, 1996.
Plaintiff relied on Section 2000e-5(k) of Title VII and moved for
attorneys' fees of $16,118.50, taxable costs of $135 and non-taxable
costs of $59.63.

On May 20, 1996, the District Court entered an Order awarding the
plaintiff two-sevenths of his requested fees, costs, and nontaxable
expenses. The plaintiff filed a timely motion under Fed. R. Civ. P.
59(e) for reconsideration. This motion was denied without a hearing
on June 21, 1996. This appeal followed.

The District Court correctly determined that the prevailing plaintiff
is entitled to an award of attorneys' fees and costs. Federal courts rou-
tinely award fees to prevailing plaintiffs in civil rights and discrimina-
tion cases. The fact that the plaintiff accepted a Fed. R. Civ. P. 68
settlement makes the plaintiff a prevailing party on his ADA claims
and, as such, he is entitled to an award of attorneys' fees and costs.
Marek v. Chesny, 473 U.S. 1 (1985); Marryshow v. Flynn, 986 F.2d
689, 691-92 (4th Cir. 1993). The parties in this case could have stipu-
lated that the $50,000 settlement figure included accrued attorneys'
fees or otherwise settled the issue of attorneys' fees and costs. They
did not, and the plaintiff is entitled to an award of attorneys' fees and
costs as a prevailing party.

Guidance for setting the amount of attorneys' fees is provided by
the Supreme Court's opinion in Blum v. Stenson , 465 U.S. 886
(1984). The substantial issue that this Court must address is whether
the District Court used a permissible legal standard in reducing the
amount of fees and costs by five-sevenths. This Court reviews the
District Court's determination of attorney's fees for abuse of discre-
tion. See Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986); Spell v.

                     3
McDaniel, 852 F.2d 762 (4th Cir. 1988); Johnson v. Hugo's
Skateway, 974 F.2d 1408 (4th Cir. 1992).

The only factor which is pertinent to this appeal is whether the five
common-law claims asserted in the original complaint were distinct
in all respects from the two ADA claims. The District Court deter-
mined, "[t]here is no significant overlap between the state law and
ADA counts of the complaint." It was on this determination that the
lower court denied five-sevenths of the requested fees and costs.

The district court determined that Shasteen's two ADA claims
were unrelated to his five state claims. Relying on the Supreme
Court's decision in Hensley v. Eckerhart, 461 U.S. 424 (1983), in
which the Court held that no fees should be awarded for time spent
on unsuccessful claims that were unrelated to successful ones, the dis-
trict court ruled that Shasteen should not be compensated for the time
spent pursuing the five state claims. The methodology used by the
district court in deciding the fee and cost issue, the ratio of successful
claims to unsuccessful claims, has been rejected by the Supreme
Court. "We agree with the District Court's rejection of a mathematical
approach comparing the total number of issues in the case with those
actually prevailed upon.... Such a ratio provides little aid in determin-
ing what is a reasonable fee in light of all the relevant factors. Nor
is it necessarily significant that a prevailing plaintiff did not receive
all of the relief requested." Hensley at 435 n.11 (1983).

The district court's award of attorneys' fees must therefore be
vacated and this portion of the case remanded for a recalculation of
the amount of attorneys' fees owed Shasteen.

Second, because Weber was not named as a defendant to any of the
ADA claims, he cannot be held liable for any award of attorneys' fees
or nontaxable costs in this case. Further, the Appellant's Petition and
Memorandum do not specifically claim that Weber should be held lia-
ble for any such fees. Weber is liable for taxable costs under 28
U.S.C. § 1920.

In sum, we affirm the award of attorneys' fees and costs to the
plaintiff.* However, we reverse the district court's award against
_________________________________________________________________
*The defendants also cross-appealed, claiming that the district court
erred when it granted Shasteen any attorneys' fees or costs. According

                     4
Weber as to attorneys' fees and nontaxable costs only. While we dis-
agree with the formula used by the district court, we specifically make
no finding as to the proper amount of fees. We remand in part for fur-
ther proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
_________________________________________________________________
to defendants, in an argument not raised before the district court, the
$50,000 settlement included attorneys' fees and costs for Shasteen.
Because we conclude, for the reasons stated herein, that Shasteen is enti-
tled to attorneys' fees and costs as a prevailing plaintiff and that the
$50,000 did not include attorneys' fees and costs, we reject the defen-
dants' argument as stated in their cross-appeal.

                    5
