878 F2d 387 Terry v. City of Vancouver Terry

878 F.2d 387

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Helen TERRY, Plaintiff-Appellee,
CITY OF VANCOUVER, a municipal corporation, Paul Grattet,
personally and as City Manager of City of Vancouver, Jean
Grattet, his spouse, Kent Shorthill, personally and as
Director of Finance and Administration for City of
Vancouver, Patricia Shorthill, his spouse, Civil Service
Commission of City of Vancouver; Gil Kleweno, its Chair,
Shelley Parsons, member, and Michael Mowatt, member,
Helen TERRY, Plaintiff-Appellant,
CITY OF VANCOUVER, a municipal corporation, Paul Grattet,
personally and as City Manager of City of Vancouver, Jean
Grattet, his spouse, Kent Shorthill, personally and as
Director of Finance and Administration for City of
Vancouver, Patricia Shorthill, his spouse, Civil Service
Commission of City of Vancouver, Gil Kleweno, its Chair,
Shelley Parsons, member, and Michael Mowatt, member,

Nos. 87-4322, 88-3686 and 88-3894.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 1, 1989.
Decided June 27, 1989.


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The named appellants (hereinafter collectively The City) appeal from the final judgment entered against them in this action for damages for violation of 28 U.S.C. Section 1983 and for pendent state-law claims.


In June of 1975, Terry was hired by the City of Vancouver to serve half of her time as Personnel Manager and half time as Chief Examiner/Clerk of its Civil Service Commission. Her employment was terminated on April 25, 1986. She filed this action on August 13, 1986.


Terry alleged in her complaint that her employment was terminated without the requisite "just cause" and in retaliation for her deposition testimony against a city official accused of sexual harassment. She also claimed that she was denied due process prior to termination of her employment because of the refusal of the City to grant her request for an opportunity to examine official records in order to prepare her defense. The City argued in its motion for a summary judgment, at the close of the plaintiffs' case, and after the jury returned its verdict, that this evidence was insufficient to prove any of the claims set forth in the complaint and failed to demonstrate that two of the defendants Kent Shorthill (Shorthill) and Paul Grattet (Grattet), violated clearly established statutory or constitutional rights.


The district court rejected the City's argument and denied the motion for a summary judgment, a directed verdict, a judgment notwithstanding the verdict, a new trial or a remittitur. The City has presented the same arguments to this court. We agree with the trial court's rejection of the City's contentions and affirm. We vacate the district court's award of costs for paralegal assistance and remand for a determination of the time expended by the paralegals in this matter and their appropriate rate of pay.


Terry appeals from the purported denial or dismissal, on jurisdictional grounds, of her request that the City be held in contempt for violating the district court's order that she be reinstated to her employment with the proper benefits. We dismiss Terry's appeal because no order was entered denying or dismissing Terry's request.



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The City seeks reversal on the following grounds:


One. The City's motion for summary judgment, for a directed verdict and judgment notwithstanding the verdict should have been granted because as a matter of law Terry was afforded all of the protections that due process requires.


Two. Terry's claims against Grattet and Shorthill should have been dismissed on summary judgment, directed verdict or judgment notwithstanding the verdict because they were protected from an action for damages by qualified immunity.


Three. Terry's claim for wrongful discharge should have been dismissed on summary judgment, directed verdict or judgment notwithstanding the verdict because she failed to state a legally cognizable claim.


Four. The City's motion for a new trial should have been granted because the district court committed prejudicial error in its instructions to the jury.


Five. The City's motion for a new trial should have been granted because the district court erred in excluding testimony of Terry's coworker, Colleen Knuth, and in admitting other irrelevant and prejudicial evidence.


Six. The City's motion for a remittitur or, in the alternative, a new trial should have been granted because the jury's damage award was excessive.


Seven. Attorneys' fees and costs awarded by the district court should be reduced because they were excessive and not based upon proper documentation and evaluation.


We address each contention and the facts pertinent thereto under separate headings.




A. Refusal of the Denial of a Motion for Summary Judgment. The City's motion for a summary judgment was denied on the express ground that "[t]he existence of genuine issues of material fact precludes summary judgment." The City argued that summary judgment was required because the evidence presented in opposition to the dismissal motion failed to demonstrate a violation of due process or that she was wrongfully terminated. In addition, the City contended that the evidence viewed in the light most favorable to Terry showed that Shorthill and Grattet were qualifiedly immune from the payment of civil damages.


Terry alleged in an affidavit in opposition to the motion for a summary judgment that she was terminated without just cause and the reasons offered by the City for her discharge were pretextual. Terry also alleged that she was denied access to records necessary to present a defense to the City's accusations.


The denial of the City's motion for a summary judgment was followed by a trial by jury on the conflicting factual theories of the litigants. In Locricchio v. Legal Services Corp., 833 F.2d 1352 (9th Cir.1987), we held that "[t]he denial of a motion for a summary judgment is not reviewable on an appeal from a final judgment entered after a full trial on the merits." Id. at 1359. The City argues that Locricchio is inapplicable because, "[w]hen ... a District Court commits errors of law or misapplies the law to undisputed facts, and such error is preserved by the appellant at each stage of the proceedings, the summary judgment denial should be reversed." The City asserts that the undisputed facts presented in the opposing affidavits established the defense of qualified immunity. Accordingly, the City suggests Locricchio is inapplicable. We disagree.


The City would have us review the record to determine whether the district court erred in concluding that there were genuine issues of material fact in dispute. If we were to engage in such an examination of the record, however, we would directly violate the unequivocal law of the circuit as explicated in Locricchio. We lack the authority to do so. We are bound by the law of this circuit as explained in Locricchio. Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir.1984). Thus, because a trier of fact has considered the factual questions in this matter, the denial of the motion for a summary judgment is affirmed without reviewing its merits.

B. Sufficiency of the Evidence at Trial


The City contends that the evidence presented at trial by Terry in support of her Section 1983 claim failed to demonstrate that she was deprived of her interest in continued employment in violation of procedural due process. The City seeks reversal of the orders denying a directed verdict and a judgment notwithstanding the verdict. The City also argues that the evidence was insufficient to support the jury's verdict in Terry's favor.


1. Standards of Review.


The City argues that the district court erred in denying a directed verdict and a judgment notwithstanding the verdict. The denial of a motion for a directed verdict is not appealable. Locricchio, 833 F.2d at 1356, n. 2; May v. Watt, 822 F.2d 896, 899 n. 1 (9th Cir.1987). We review a denial of a motion for a judgment notwithstanding the verdict independently without deference to the district court's conclusions of law. Peterson v. Kennedy, 771 F.2d 1244 (9th Cir.1985). "[W]e do not account for witness credibility, weigh evidence, or reach a different result simply because we feel it is more reasonable." Locricchio, 833 F.2d at 1356.


Where an appellant challenges the sufficiency of the evidence to support a jury's verdict, we review the record to determine whether substantial evidence supports the trier's of fact resolution of the factual issues. Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1023 (9th Cir.1985), cert. denied, 474 U.S. 1059 (1986). In an appeal from a verdict in favor of the plaintiff, we must decide whether there is sufficient evidence to satisfy a rational juror who has applied the relevant standard of proof, that the facts necessary to support a cause of action have been proved. See St. Elizabeth Community Hosp. v. Heckler, 745 F.2d 587, 592 (9th Cir.1984) (We affirm if there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion") (citation omitted).


The City's multiple attacks on the sufficiency of the evidence lead us to the same basic inquiry: Does the record contain substantial evidence in support of Terry's claims when viewed in the light most favorable to her factual theories and the credibility of her witnesses, after disregarding contrary inferences or contradictory proof?


2. Sufficiency of the Evidence on Violation of Procedural Due Process.


The parties agree that Terry had a protectable interest in each of her positions with the City of Vancouver. There is also no dispute that under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), Terry could not be deprived of her employment without due process of law. Id. at 538. We have interpreted the due-process clause as requiring a "meaningful hearing at a meaningful time." Knudson v. City of Ellensburg, 832 F.2d 1142, 1147 (9th Cir.1987) (9th Cir.1987) (citing Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985)) (en banc). We have also determined that where a state actor is "acting pursuant to a state policy and deliberately carrying out what appears to be proper procedures," a meaningful hearing must be provided prior to the deprivation. Piatt, 733 F.2d at 1036. There is no dispute in this matter that the city officials terminated Terry's employment deliberately, after seeking legal advice, and in accordance with the procedures they believed applicable to the involuntary termination of her employment. Accordingly, our review will be limited to the adequacy of the pretermination process applied to Terry.


Terry received notice that the City was considering terminating her employment. The record also shows that Terry was advised that she could appear and present a defense to the City's accusations. The narrow question we must decide is whether under the facts and circumstances of this case, a rational jury could properly determine that Terry was not given a "meaningful hearing" before she was discharged.


The evidence, when viewed in the light most favorable to Terry, shows that in August, 1984, she testified at a deposition hearing that the Police Chief of the City of Vancouver, Washington, made sexual advances towards her. Thereafter, she noticed that her coworkers would not speak to her. She was also not notified of changes in the time set for scheduled meetings. After hearing rumors that her activities were under surveillance, she observed that the police department's drug surveillance van was parked under her office window.


On December 14, 1985, she was told by persons from other cities that they had been contacted by officials from the City of Vancouver concerning her outside consulting services. On December 16, 1985, Terry approached her immediate supervisor, Shorthill, to discuss these rumors. At this time, Shorthill confirmed that he had ordered that surveillance be conducted concerning her use of city facilities when performing outside consulting work.


Terry volunteered to terminate her consulting work immediately. Shorthill declined to accept her offer. After further discussion, Shorthill admitted that Terry's job was in jeopardy and that there was a grave possibility that criminal behavior was involved. Shorthill refused to discuss the matter further. He told Terry he was still building his case.


On December 18, 1985, Terry was informed by Shorthill and Grattet, the City Manager, that they were considering discharging her from her employment because she had used city equipment for her private consulting services and because of problems involving her work performance. On December 20, 1985, Shorthill and Grattet met again with Terry to discuss the new allegations. Terry advised Shorthill and Grattet that she needed access to records in the City's control before she could respond further. Grattet scheduled another meeting for December 30, 1985. Grattet subsequently postponed this meeting upon hearing a rumor that Terry might have problems with alcohol.


On January 2, 1986, Shorthill and Grattet met with Terry, her son, and Nancy Freeland, of Cape Counseling Services, an alcoholic rehabilitation agency. Shorthill advised Terry that she had a severe alcoholic problem that interfered with her work and required immediate treatment. Terry was informed that she must submit to an assessment to determine chemical dependency and to undergo whatever treatment might be prescribed, or face termination of her employment. She was also told that after she was evaluated and treated, upon her return to work, she would be placed in a three-month "conditional period" which would be followed by a performance evaluation "upon which [her] continued employment [would] depend." She was also informed "[e]ffective 5:00 p.m. today you should not return to work, other than to remove personal items until approved to do so by me. Effective immediately you will be placed on short term disability." (emphasis added) Terry agreed to accept the disability leave.


On April 9, 1986, Grattet sent a letter to Terry requesting that she meet with him on April 17, 1986 to discuss "several matters [that] have come to light which could affect your continued employment with the city." In a letter dated April 14, 1986, Terry informed Grattet that "her nervous system was not up to the style of meeting you describe." Terry also advised Grattet that she could not "obtain an attorney to help her on such notice."


In a letter dated April 18, 1986, Grattet informed Terry of the specific acts of misconduct that compelled termination of her employment effective on April 25, 1986 if she failed to respond or attend a pretermination hearing. Terry was accused of using City of Vancouver facilities and supplies in her private consulting business. She was also informed that there were irregularities in her conduct of civil service examinations and hiring procedures. Grattet instructed Terry that she had a right


to file a notice of appeal of your dismissal from the position as Civil Service Secretary/Examiner. In the present case, the city attorney has advised that appeal could not be to the commission itself and would have to be directly to Superior Court. He cites as authority on this State ex rel Beam v. Fulweiler, 76 Wn.2d 313 (1969) and State ex rel Beam v. Fulweiler, 6 Wn.App. 369 (1972).


In a letter dated April 21, 1986, Terry informed Grattet that "without the original source documents, I can't defend myself."


Grattet responded in a letter dated April 21, 1986 as follows: "I have received and considered your letter of January 21, 1986, but do not find that the information you provided in that letter changes my decision to terminate your employment effective April 25, 1986." Grattet again offered to meet with Terry prior to taking action to terminate her employment.


At no time after January 2, 1986 was Terry authorized to return to her office or to inspect the City's records to prepare a defense to the charge against her. Terry was advised in a letter dated April 25, 1986, that her employment had been terminated.


Terry's factual theory at trial was, that as a result of being locked out of her office on January 2, 1986, she was denied access to information in the City's possession necessary to present a meaningful pretermination defense. The City's theory of defense was that Terry was provided with written notice and an opportunity to attend a pretermination hearing.


Whether Terry was provided with a meaningful pretermination hearing was a disputed issue of fact at trial. The evidence presented by Terry was sufficient to convince a rational jury by a preponderance of the evidence, that she was denied access to records that would have given her the opportunity to prepare a meaningful defense to the City's charges of misconduct. We are bound by the jury's factual determinations. Because the evidence presented to the jury demonstrated a procedural due process violation, the district court did not err in denying the motion for a judgment notwithstanding the verdict and a motion for a new trial regarding Terry's Section 1983 claim.


3. Sufficiency of the Evidence of Qualified Immunity.


The individual defendants assert "the plaintiff presented no evidence from which a reasonable person in defendant's position would have known that what they were doing violated any clearly established right of plaintiff's." Appellants' Opening Brief at 23. We disagree.


As discussed above, the evidence shows that Terry was deprived of a meaningful pretermination hearing because she was denied access to records that were essential to the preparation of a defense against the City's accusations of misconduct in the performance of her duties. Moreover, the City presented evidence that Grattet and Shorthill were advised by the Vancouver City Attorney of their duty under Loudermill to accord Terry a meaningful pretermination hearing. The City presented no evidence that Grattet authorized Terry to return to her place of employment after January 2, 1986.


The record does not support the individual defendants' argument that the defense of qualified immunity was demonstrated during the presentation of Terry's proof at trial. A public official is entitled to qualified immunity from civil damages for his discretionary acts in performing his duties unless his conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The law was clearly established in Loudermill that Terry was entitled to a meaningful hearing. A reasonable person in Grattet's position, having ordered Terry not to return to her office without his prior approval, would have known that she could not prepare a defense to charges of misuse of city property and irregularities in civil service examinations and hiring practices, without examining records in the possession of the City. A reasonable person would have known that rejection of Terry's request for access to these records clearly violated her right to a meaningful hearing.


4. Sufficiency of the Evidence of Wrongful Discharge.


The City presents three arguments in its challenge of the award of damages for wrongful discharge: (1) a city employee cannot file an action for wrongful discharge, (2) the evidence shows that Terry was terminated for just cause, (3) Terry failed to prove that the City violated public policy in discharging her.


(a) Futility of Administrative Remedy.


The City argues that under the circumstances of this case, Washington law precludes the filing of a civil action for wrongful discharge. Ordinarily, under Washington law, a public official must exhaust available remedies in challenging a wrongful termination. Lew v. Seattle Sch. Dist. 1, 736 P.2d 690, 692 (Wash.App.1987). Exhaustion of grievance procedures is excused under Washington law, however, "where pursuing the available remedies would be futile." Baldwin v. Sisters of Providence in Washington, Inc., 769 P.2d 298, 300 (Wash.1989). Futility is demonstrated by "a showing of bias or prejudice on the part of discretionary decisionmakers." Id. We recognize that Baldwin concerned the requirements of exhaustion of contractual grievance procedures. Id. Our research did not disclose a decision wherein the Washington Supreme Court applied the futility exception to a statutory grievance procedure. We are persuaded, however that "consideration of fairness or practicality," id., would compel extension of the futility exception to a public employee's administrative grievance procedures. Cf. McConnell v. City of Seattle, 722 P.2d 121, 125 (Wash.App.1986) (plaintiff failed to exhaust remedies where "case did not fall under any of the exceptions to the exhaustion requirement and the issues he raised were capable of being heard by the Civil Service Commission").


In the instant matter, Terry was advised by Grattet that she should not pursue any grievance concerning her termination before the Civil Service Commission. Nevertheless, Terry submitted a timely letter to the Civil Service Commission challenging her discharge within 10 days following notification of the termination of her employment. Her request for a hearing before the Civil Service Commission was rejected because some of the members were involved in the decision to discharge her.


The record also shows that it would have been futile to file a grievance from the termination of her employment by Grattet because he would have ruled on her grievance in his capacity as City Manager. Under the circumstances of this case, exhaustion of her administrative remedies was excused under the futility exception. The filing of Terry's state-claimed causes of action was authorized under Washington law.


C. Just Cause for Terminating Terry's Employment.


The City argues that the record shows that it had just cause to terminate Terry based on poor job performance and misuse of city facilities and property for her personal benefit. Terry testified that these accusations were pretextual and that she was discharged in retaliation for her deposition testimony in a sexual harassment action against the police chief of the city of Vancouver. The jury rejected the City's evidence and accepted Terry's testimony. We cannot reweigh the evidence or make our own assessment of the credibility of the witnesses presented at trial by the litigants. The record contains substantial evidence that Terry was discharged without just cause. Viewing the evidence in the light most favorable to Terry, as we must, we conclude that the district court correctly denied the motions for a judgment notwithstanding the verdict and a new trial.

D. Violation of Public Policy


Terry argues that the evidence supports the judgment in her favor on her wrongful discharge claim because her employment was terminated in violation of Washington public policy. She appears to contend that termination of her employment, without just cause and in retaliation for her deposition testimony, supports her cause of action for wrongful termination on a discrete public policy theory. In view of our determination that the record supports the jury's finding that just cause did not exist for discharging her, we decline to reach the merits of her novel public policy argument.

E. Alleged Instructional Error


The City asserts that reversal of the judgment is required because the district court committed prejudicial error in its charge to the jury and in rejecting proposed instructions. We review a district court's formulation of the instructions presented to the jury for abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985). We must determine, independently, however, whether "the substance of the applicable law was fairly and correctly covered." Pollock v. Koehring Co., 540 F.2d 425, 426 (9th Cir.1976).


The City argues that "[t]he court's instructions contained incorrect statements of the law, injected irrelevant issues into the case, and erroneously shifted the burden of proof to the defendants." Much of the City's attack on the court's instructions lacks substance or identifies harmless error. We will only discuss those contentions that appear to require a thoughtful response because they present serious questions concerning alleged misstatements of the applicable law.


1. Official Policy.


The City argues that the district court's instructions failed to inform the jury that a municipal corporation is liable under Section 1983 only for action "pursuant to official municipal policy of some [nature] which cause[s] a constitutional tort." Monell v. Dept. of Social Services of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036 (1978). The City also contends that because Grattet and Shorthill lacked the authority to make final decisions concerning personnel actions, the City of Vancouver could not be held liable for their acts. Pembaur v. Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1299 (1986).


The court's instructions did not set forth the "official policy" restrictions on municipal liability required by Monell. The instructions are also silent on the Pembaur requirements that the decisionmaker possess "final" authority in order to impose liability on a municipality. Pembaur, 475 U.S. at 483, 106 S.Ct. at 1299.


We note at the outset that the City did not request an instruction that would inform the jury that the City of Vancouver was not liable for the acts of its employees unless they acted in accordance with official policy or they were decisionmakers with final authority over the action that was taken. We have reviewed the reported proceedings concerning the instructions submitted by the parties. The City of Vancouver did not advise the district court that it was relying on the absence of proof of official policy as a defense. Failure of the City of Vancouver to request an instruction incorporating the official policy and final authority principles constitutes a waiver of its right to raise these issues for the first time on appeal. See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 213 (9th Cir.1988) (where an appellant fails to request an instruction at trial, the issue is not preserved on appeal). Had the issue been raised in the district court, Terry would have had the opportunity to demonstrate from the record that Grattet and the members of the Civil Service Commission were carrying out official policy in terminating her employment or that these persons were decisionmakers with final authority to discharge an employee. Whether an employee has final policy making authority is a question of law that must be resolved by the trial court. The City of St. Louis v. Prapotnik, 485 U.S. 112, 108 S.Ct. 915, 924 (1988). The City of Vancouver did not present this question of law to the district court. Furthermore, the City of Vancouver's failure to request these instructions denied the district court the opportunity to consider whether the Monell and Pembaur doctrine is applicable under the facts presented to the jury. Instead, the City of Vancouver remained silent on this theory of defense until it received an adverse verdict. Under these circumstances, we conclude that the district court did not abuse its discretion in failing to instruct the jury on the official policy and final authority limitation on municipal liability.


2. Respondeat Superior Instruction.


The City argues that it was error to read Instruction 4 to the jury because the doctrine of respondeat superior is inapplicable in a Section 1983 action. In Monell, the Supreme Court held that a municipal corporation could not be held liable on the theory of respondeat superior in the absence of evidence of proof that the plaintiff was injured as the result of the application of an official policy. Monell, 436 U.S. at 691.


Instruction 4 was a proper instruction to explain the City of Vancouver's liability for the acts of its employees in Terry's state law claim for wrongful discharge. It was also appropriate for the Section 1983 claim unless the individual defendants were not executing official policy or were not decisionmakers with final authority. As explained above, the City of Vancouver did not offer this defense to the district court for an appropriate ruling on the relevant legal questions, nor were instructions requested on this theory. The district court did not abuse its discretion in instructing the jury on the doctrine of respondeat superior.


3. Allocation of Burden of Proof.


The City's assertion that Instruction 15 erroneously shifted the burden of proof to the defendants is without merit. The jury was instructed as follows:


The burden is on the plaintiff to demonstrate that his or her dismissal may have been motivated by reasons that contravene a clear mandate of public policy. If he or she so demonstrates, the burden shifts to the employer to prove that the dismissal was for reasons other than those alleged by the employee.


Contrary to the City's argument, the instruction did not shift the burden of persuasion to the defendants. Instead, the jury was told that Terry had the burden "to demonstrate" that she was discharged without just cause. If Terry met this burden, the jury was told that the burden "to prove" its defense, if any, shifts to the defendant. This instruction merely describes what the jury had already witnessed. Terry presented her proof and rested. The defendants offered evidence to show that she was discharged for just cause. The court's instruction did not inform the jury that the City had the burden of persuasion. Instruction 15 did not contain an incorrect statement of the law.


4. Alleged Abandonment of Claim.


The City argues that Instructions 11 and 12 should not have been given because Terry had advised her supervisors that she was abandoning her claim to her position as personnel manager. No authority is cited for this contention. Furthermore, no objection was made to the giving of these instructions. Therefore, the alleged error was not preserved for appeal. Miller, 845 F.2d at 213.


5. Propriety of the Loudermill Instruction.


The City complains that Instruction 13 incorrectly states the requirements of Loudermill, 470 U.S. 532, because of its emphasis on "meaningfulness." Appellants Opening Brief at 33-34. Instruction 13 provides as follows:


Due process requires that before a property right is taken away, the person must have notice, a summary of the evidence against her, and a meaningful opportunity to be heard. These are called 'pre-termination procedural due process rights.' The fundamental requirement of pre-termination procedural due process is the opportunity to be heard at a meaningful time in a meaningful manner.


Instruction 13 accurately reflects the law of this circuit. We held in Knudson that procedural due process requires that a person cannot be deprived of a protectable interest unless he or she receives a "meaningful hearing at a meaningful time." Knudson, 832 F.2d at 1147.


6. Relevancy of Certain Instructions.


The City objects to Instructions 14, 17, 18, and 21 on relevancy grounds. The City has not argued nor demonstrated, however, that the giving of these instructions was prejudicial. Therefore, we decline to review them for relevancy.


7. Damages Instruction.


The City also maintains that Instruction 24 improperly instructed the jury on damages by referring to lost fringe benefits and injury to Terry's reputation. The City claims that no evidence was offered on these matters. It is also asserted that the instruction did not "properly instruct on causation or limit the time frame the jury was considering." Appellants' Opening Brief at 37. The City offers no argument in support of these conclusory statements. The City has not claimed or demonstrated that the giving of Instruction 24 was prejudicial. Assuming that the district court instructed the jury on items of damages not proved, the City has not persuaded us that Instruction 24 affected the outcome of the trial.


F. Alleged Error in the Rejection of Certain of the City's Proposed Instructions.


1. Instructions Covered by the Charge to the Jury.


The City claims that the district court erred in rejecting 17 of its proposed instructions. We review a district court's denial of proposed instructions independently without deference to the district court's ruling. U.S. v. Wagner, 834 F.2d 1474, 1486 (9th Cir.1987). A defendant is entitled to a jury instruction on "his theory of the case if it is supported by law and has some foundation in the evidence." Echeverry, 759 F.2d at 1455. The district court, however, may reject a proposed instruction if the court's charge viewed as a whole covered that theory. United States v. Kenney, 645 F.2d 1323, 1337 (9th Cir.), cert. denied, 452 U.S. 920 (1981). The principles of law set forth in the City's proposed instructions 11, 12, 23, 24, 25, 26, 27, 33, 34, and 35 were adequately presented in the court's jury charge.


2. Qualified Immunity Instruction.


The City's proposed instruction on the alleged qualified immunity of the individual defendants was also rejected by the district court. It was not error to reject this instruction. The undisputed evidence shows that Terry was deprived of a meaningful hearing because she was denied access to records necessary for the preparation of a defense. The law concerning the requirement of a meaningful hearing was clearly established before trial. Thus, no evidence was presented by the City that would justify giving of an instruction on qualified immunity. A district court may reject an instruction that is not supported by the evidence. United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir.1984).

G. Alleged Error in Evidentiary Ruling


1. Exclusion of Colleen Knuth's Testimony.


The City claims that the district court erred in excluding Colleen Knuth's testimony. The City offered to prove through Colleen Knuth's testimony that (1) Terry had psychiatric problems prior to 1984, (2) Terry used city facilities and worked on her private consulting business on city time, and (3) Terry abused the staff. The district court ruled that Colleen Knuth's testimony was irrelevant because she left her employment prior to the events that form the basis of Terry's causes of action. The court also concluded that her testimony would be confusing, time consuming, and highly prejudicial.


We review a district court's ruling on the admission or exclusion of evidence for abuse of discretion. United States v. Layton, 767 F.2d 549, 553 (9th Cir.1985), cert. denied, 109 S.Ct. 1178 (1989). We also review for abuse of discretion a district court's determination that the probative value of proffered evidence is outweighed by its prejudicial effect. Id. at 53.


The district court did not abuse its discretion in excluding Colleen Knuth's testimony. Her testimony would have been cumulative. The court also properly weighed the slight probative value of the evidence against its potential for prejudice.


2. Admissibility of Evidence of the City's Treatment of Others.


The City argues that a district court admitted irrelevant and prejudicial evidence concerning the fact that the chief of police was not discharged notwithstanding the allegation of sexual harassment and that Shorthill was not disciplined although he also had a private consulting business. This testimony was relevant to prove that Terry was discharged in retaliation for her testimony against the chief of police. It tended to prove that she was subjected to retaliatory action because other employees faced with similar problems were treated differently. The district court did not abuse its discretion in admitting this evidence.

H. Claim of Excessive Damages


The City argues that the jury's award of $212,124.00 is not supported by the evidence and is grossly excessive. A jury's award of damages will not be vacated unless the record shows that it is "grossly excessive" or "monstrous." Fountila v. Carter, 571 F.2d 487, 492 (9th Cir.1978). The record supports the jury's award of damages.


Terry presented evidence credited by the jury that the termination of her employment caused her economic loss, mental anguish, and emotional damage. She also testified that her reputation as a public servant was adversely affected. Under these circumstances, we conclude that the damages awarded to Terry were not grossly excessive.


The City also argues that the jury's award must be reduced by half because Terry had admitted the grounds for terminating her from her half-time position as personnel manager. The City has cited no authority for the proposition that an admission, during pretermination proceedings that violate due process, bars a civil action pursuant to Section 1983. We, too, can find no principled basis for adopting this novel contention.


I. Award of Attorneys' Fees.


The City claims that the district court failed to "properly scrutinize the reasonableness of the claimed hours." Appellants' Brief at 45. The City alleges that Terry sought compensation for a third attorney's presence at trial even though the attorney did not participate in the trial but only "supervised the submission of documentary evidence." Id. at 46. The City argues that "[t]here is no apparent reason that other counsel, or the paralegal present could not have done so." Id. In addition, the City requests that the billing for attendance of more than one attorney at depositions and "travel incident thereto" should be stricken. The City further alleges that an associate spent 40 hours drafting jury instructions on the nonconstitutional issues which was "an inordinate amount of time for such a task under any circumstances, and, in this case, includes much duplication of effort ..."


We review a district court's assessment of attorney's fees for abuse of discretion. Jordan v. Multnomah County, 815 F.2d 1258, 1261 (9th Cir.1987); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 480 (9th Cir.1985). "The district court's discretion to award attorney's fees under Sec. 1988 has, however, been narrowly construed, ..., and is circumscribed by decisions of the Supreme Court and this circuit." Jordan, 815 F.2d at 1261 (citations omitted). The district court should "provide a concise but clear explanation of its reasons for the fee award." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).


We apply a two-part test to determine whether the district court abused its discretion. In awarding attorneys' fees, the courts must first calculate a lodestar amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Id. at 433. Next, the court may increase or reduce the presumptively reasonable lodestar fee. Clark v. City of Los Angeles, 803 F.2d 987, 991 (9th Cir.1986).


The lodestar figure is presumptively reasonable. Id. Under Blum v. Stenson, 465 U.S. 886, 897-900 (1984), the lodestar figure includes many factors which have been previously considered "probative on the issue of 'reasonableness' of a fee award." Clark, 803 F.2d at 990. These factors include "the novelty and complexity of the issues," "the special skill and experience of counsel," the "quality of the representation," and the "results obtained." Id. n. 3 (quoting Blum, 465 U.S. at 898-900.)


The district court provided a concise and clear explanation of the basis for the award. Hensley, 461 U.S. at 437. After outlining the contours of the law, the district court explained its award as follows:





The City attempts to argue that because Terry entered into a fee arrangement with her attorney at $100 per hour that it was an abuse of discretion to award fees at $150 per hour. Terry's attorney explained that it was "customary practice to 'bill' against retainers in contingent-fee cases at a discounted rate of $100 per hour. That amount is strictly for a bookkeeping convenience, and bears no relationship to counsel's normal fee or to market rate. As shown in plaintiff's original memorandum, $150 is the normal hourly rate charged by both primary litigators herein, and is well within market rates." The district court found that these rates were reasonable.


Contrary to the City's assertion, the record contains a detailed accounting of the hours necessary for the prosecution of Terry's claims. The district court did not abuse its discretion in awarding attorneys' fees based upon the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley, 461 U.S. at 433.

J. Award of Costs


The City contends that the district court should not have awarded $5,180.00 for paralegal expenses as part of the costs. The City argues that the district court was "required to scrutinize these hours and rates in the same manner as an attorney's request for fees." Appellants' Brief at 48. The City's contention is accurate.


Whether to award costs is within the district court's discretion. We review the court's determination for abuse of discretion. Trans. Container Services (BASEL) A.G. v. Security Forwarders, Inc., 752 F.2d 483, 488 (9th Cir.1985) (citation omitted). Expenses for paralegal assistance are recoverable costs. Northcross v. Board of Education, 611 F.2d 624, 639 (6th Cir.1979), cert. denied, 447 U.S. 911 (1980); Morgan v. Nevada Board of State Prison Commissioners, 615 F.Supp. 882, 885 (D.C.Nev.1985). The district court must evaluate the cost of paralegal assistance "in the same manner it scrutinizes lawyer time and rates." Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983).


Terry failed to report the hours and rates attributable to the use of paralegals. Thus, the district court was unable to make an independent evaluation of the claim for the expenses incurred in using the resources of paralegals. Instead, the district court awarded a lump sum of $14,820.71 for costs which included the expense incurred in using paralegals. Accordingly, the award of costs in the amount of $5,180.00 must be vacated, and the determination of the proper amount of costs attributable to the use of paralegals is remanded to the district court after a showing by Terry as to the time expended and the rates paid for such assistance.




Terry seeks review of the denial of her request that the City be held in contempt. We have no jurisdiction to consider Terry's appeal because a separate final order was not filed by the district court as required by Fed.R.Civ.P. 58. Terry's contention that we have jurisdiction because the court clerk made a docket entry that the motion was denied is without merit. The clerk made an entry in the civil minutes. A judgment is not entered until it is made a part of the civil docket in compliance with the specific requirements of Fed.R.Civ.P. 79(a). We have no jurisdiction over Terry's appeal.


The appeal filed by Terry is DISMISSED. The judgment on all issues raised by the City, except for the award of costs, is AFFIRMED. The order awarding costs in the amount of $5,180.00 for paralegal assistance is VACATED and REMANDED.


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3