LAY, Chief Judge.
This is an action under title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. Ava Williams, a black, alleges that her discharge from employment with Trans World Airlines, Inc. (TWA) was the result of racial discrimination. TWA defended her discharge for alleged reasons of neglect of duty. The district court, the Honorable Scott O. Wright presiding, found
Williams was employed by TWA on April 25, 1976, as a probationary employee in the job classification of flight attendant. She continued serving the five-month probationary period in Kansas City upon completion of a student hostess training program on May 20, 1976. Throughout the probationary period Williams' written evaluations regarding job appearance, passenger service, and knowledge of safety regulations were favorable, but her encounters with supervisory personnel were less uncensured. On one occasion during the training period Williams' supervisor criticized her for looking bored during a class, but Williams explained that her expression was one of concentration, not of boredom. In June or July 1976, Williams' supervisor observed her in the airport wearing cut-off blue jeans while off duty and on personal business. The supervisor warned that Williams' attire was in violation of company policy, but Williams thought that no such policy existed and that the supervisor was joking. Subsequently, Williams' supervisor again found Williams dressed in cut-off blue jeans at the airport during off-duty hours while on personal business and reprimanded her; at Williams' request, the supervisor showed to her the TWA Front Line Handbook, dated May 1975, which states:
Id. at 6.
On July 17, 1976, following a "three-month achievement" seminar, Williams' supervisor and another supervisor conferred with Williams regarding apparent boredom during the seminar and the cut-off blue jeans incidents. The confrontation and discussion of her "attitude problem" angered Williams, and a third supervisor was called in to assist. Although Williams exhibited signs of feeling unduly harassed with the first two supervisors, she was calm and composed with the third. A verbal, and later written, warning ensued, stating that Williams must display exemplary conduct for the remainder of the probationary period and that any future incident indicative of an "attitude problem" might subject her to termination.
Finally, in September 1976, Williams was terminated as a result of a letter received by TWA from a passenger. The letter referred to other attendants by name, but referred to Williams as "the black stewardess," accusing her of "prostituting" with a "black passenger" during a six-hour grounding of an August 1, 1976, flight in Colorado Springs, Colorado, due to bad weather. Although the truth of the allegations was never investigated and substantiated, and the accusation of "prostituting" was not believed, Williams' supervisor and another supervisor, joined by the acting general manager and the head of labor relations for in-flight personnel, decided to terminate Williams based upon the customer letter. Williams' termination letter of September 2, 1976, stated that the reasons for termination were neglect of duty and failure to perform duties in a professional, workmanlike manner.
Upon exhaustion of her administrative remedies, Williams brought this action in the district court under title VII and section 1981, alleging termination of employment due to racial discrimination. The district court found that, although Williams failed to prove a case of disparate treatment, she had, nevertheless, proven sufficient facts to establish a prima facie case of racial discrimination. The district court found that the direct evidence which served as the nexus between Williams' termination and her race was the grossly exaggerated "passenger complaint letter written with strong racial overtones" which prompted the discharge without verification of the facts. The court held TWA liable for the actions that it took in reliance upon the unverified accusations. The court also held that TWA failed to rebut Williams' prima facie case and that the discrimination was intentional under 42 U.S.C. § 1981. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The court awarded Williams reinstatement, back wages, lost fringe benefits, costs, and reasonable attorney's fees. In doing so it denied damages for mental distress, however, finding Williams' testimony "entirely credible" but "inadequate to base an award of damages upon." In addition, the court reduced plaintiff's claim for attorney's fees on the basis that plaintiff's counsel had failed to properly prepare his case. Williams appeals on the attorney's fees and mental distress issues; TWA cross-appeals on the grounds that Williams' proof of racial discrimination cannot be founded upon a theory other than disparate treatment or disparate impact; additionally, TWA urges that the district court misapplied the burden of proof under Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
The Prima Facie Case.
We discuss TWA's cross-appeal first.
The plaintiff in a title VII case possesses the ultimate burden of persuasion and the intermediate burden of proving by a preponderance of the evidence a prima facie case of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). A prima facie case of discrimination based upon a theory of disparate treatment is succinctly set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).
The McDonnell Douglas test can be made applicable to discharge cases as well as hiring cases. See Henry v. Ford Motor Co., 553 F.2d 46, 48 n.3 (8th Cir. 1977); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1094 nn.6 & 7, 67 L.Ed.2d 207 (1981); Mosby v. Webster College, 563 F.2d 901, 902 & n.2 (8th Cir. 1977). Although this court has held that, to proceed under a disparate treatment theory, a plaintiff must prove differences in treatment and discriminatory motive, it has also recognized that what constitutes a prima facie case of employment discrimination necessarily varies according to the facts. Meyer v. Missouri State Highway Comm'n, 567 F.2d 804, 807-08 (8th Cir. 1977), cert. denied, 435 U.S. 1013, 98 S.Ct. 1888, 56 L.Ed.2d 395 (1978).
In the present case, the district court found that there was a violation of title VII in that plaintiff was discharged for racial reasons. Nonetheless, the court found that the plaintiff had not successfully proven a case of disparate treatment since she had failed to show a different standard of treatment for black employees and similarly situated white employees. An interpretive analysis of the district court's opinion does not, however, compel us to accept TWA's argument that, since the court found plaintiff had failed to prove disparate treatment, it is entitled to a judgment for the defendant. It appears to us that the trial court's rejection of plaintiff's theory of disparate treatment is based on the limited reasoning that documentary proof obtained from TWA did not show that black employees were treated any differently than whites.
Rebuttal of Prima Facie Case.
The court below held that TWA failed to rebut Williams' prima facie case of discrimination. TWA's rebuttal evidence focused primarily on occurrences other than the complaint letter. The district court stated:
Williams v. Trans-World Airlines, Inc., 507 F.Supp. 293, 302 (W.D.Mo.1980).
The court continued by suggesting that the defendant could have rebutted with evidence that the complaint letter was true, thereby negating the inference that the letter was racially motivated, or by evidence
We turn now to Williams' appeal. The plaintiff argues that the district court erred in denying damages for mental distress because it applied the wrong legal standard in requiring proof of out-of-pocket losses by way of medical testimony and bills in order to establish damages for mental distress.
One of the purposes of a title VII award is to make a person "whole" for injuries caused by illegal employment discrimination, Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 280 (1975); DiSalvo v. Chamber of Commerce, 568 F.2d 593, 598 (8th Cir. 1978); and the award of compensatory damages for humiliation or emotional suffering is an appropriate remedy for deprivation of a constitutional right. Seaton v. Sky Realty Co., 491 F.2d 634, 636 (7th Cir. 1974); see Carey v. Piphus, 435 U.S. 247, 264-67, 98 S.Ct. 1042, 1052-54, 55 L.Ed.2d 252 (1978).
Plaintiff's counsel asserts entitlement to an award based upon approximately 450 hours at a rate of $90.00 per hour for attorney's fees as the "prevailing party" in this civil rights action.
Williams v. Trans-World Airlines, Inc., 507 F.Supp. 293, 305-06 (W.D.Mo.1980).
On appeal, plaintiff's counsel urges that the trial court erred in failing to award attorney's fees for time involved in their attempt to prove disparate treatment with documentary evidence. In this regard we have stated: "Attorney's fees for a claim which is reasonably calculated to advance a client's interests should not, however, be denied solely because that claim did not provide the precise basis for the relief granted." Brown v. Bathke, 588 F.2d 634, 637 (8th Cir. 1978). See also Johnson v. Nordstrom-Larpenteur Agency, Inc., 623 F.2d 1279, 1282 (8th Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980); Oldham v. Ehrlich, 617 F.2d 163, 168 n.9 (8th Cir. 1980).
The district court's analysis does not support plaintiff's counsel's contention. Its finding of a reduced fee is based on: (1) the determination that 450 hours were unreasonable and not justified by the record and do not accurately reflect the time and labor required to perform the service actually performed; and (2) the determination that a reasonably hourly fee in the case was $50.00 per hour. In addition, in making this award, the trial court found specific instances where the performance of plaintiff's counsel was totally lacking.
In the present case, plaintiff stipulated that the actual damages in dispute were less than $1,000. We agree with the trial court that the claimed hours, to wit, 450, to prepare this case were totally unreasonable and unnecessary. A fair attorney's fee must be realistic and bear some reasonable relationship to the right to be vindicated and the damages sought. In addition, the trial court's evaluation of plaintiff's counsel's services rests upon personal observation of performance. Under the circumstances, we fail to find that the trial court abused its discretion in awarding attorney's fees of $5,000.
The district court found that the plaintiff succeeded under both title VII and section 1981, and apparently doubled the damages award. This is clearly erroneous, as damages are only recoverable once for a transaction involving two violations of law. See Pappas v. Moss, 303 F.Supp. 1257, 1281 (D.N.J.1969).
The judgment of the district court as to the award of attorney's fees is affirmed. The finding of liability on the part of TWA is affirmed; however, the judgment is reversed, and the cause is remanded for a determination of damages for mental distress. The judgment should also be amended to reflect a single recovery of actual damages.
TWA In-Flight Service Handbook 4.01-4.03 (Rev. July 1, 1975; Jan. 16, 1976).
411 U.S. at 802, 93 S.Ct. at 1824.
A prima facie case of discrimination based upon other theories is, of course, possible under title VII. Other theories include: (i) disparate impact; see Griggs v. Duke Power Co., 401 U.S. 424, 429-33, 91 S.Ct. 849, 852-54, 28 L.Ed.2d 158 (1971), in which a facially neutral policy or practice operated to adversely affect a protected class; and (ii) pattern or practice; see International Bhd. of Teamsters v. United States, 431 U.S. 324, 358-60, 97 S.Ct. 1843, 1866-67, 52 L.Ed.2d 396 (1977), where the denial of rights is repeated, routine, or of a generalized nature. See also Setser v. Novack Inv. Co., 638 F.2d 1137, 1147 (8th Cir. 1981), regarding employer retaliation following filing claim for racial discrimination with EEOC.