FILED: January 31, 2001

VALARIE SIVERLY,

Respondent,

v.

YOUNG & MORGAN TRUCKING CO.,

Appellant.

Appeal from Circuit Court, Marion County.

Rodney W. Miller, Judge.

Argued and submitted May 3, 2000.

Robert J. Custis argued the cause for appellant. With him on the brief was Jill F. Foster.

James M. Brown argued the cause for respondent. With him on the brief was Enfield Brown Collins & Knivila.

Before Edmonds, Presiding Judge, and Linder and Kistler, Judges.

KISTLER, J.

Award of attorney fees reversed; otherwise affirmed.

KISTLER, J.

Plaintiff filed an employment discrimination claim against defendant in which she sought to recover back pay. The jury found that defendant had discriminated against plaintiff but awarded her no back pay. The trial court ruled that plaintiff prevailed on her employment discrimination claim and awarded her attorney fees pursuant to ORS 659.121(1). We reverse the trial court's award of attorney fees.

Plaintiff worked as a truck driver for defendant. Pursuant to ORS 659.121, plaintiff filed a complaint against defendant alleging that she had been "subject to discrimination due to her sex in the form of sexual harassment." (1) ORS 659.121(1) authorizes a court to issue injunctive and other equitable relief to remedy employment discrimination. See Holien v. Sears, Roebuck and Co., 298 Or 76, 95, 689 P2d 1292 (1984). In her complaint, plaintiff sought one form of equitable relief--back pay. (2) She did not seek any other form of equitable relief, nor did she seek a declaration that her employer had discriminated against her.

The court submitted a special verdict form to the jury. The jury answered "yes" when asked whether defendant had "engage[d] in an unlawful employment practice against plaintiff as alleged in plaintiff's first claim for relief[.]" When asked "[w]hat were plaintiff's damages, if any," the jury answered "zero." Plaintiff petitioned for attorney fees under ORS 659.121(1), arguing that she was the prevailing party on her employment discrimination claim. Defendant objected that plaintiff was not the prevailing party and that, even if she were, the court should decline to exercise its discretion to award her any attorney fees. The trial court disagreed and awarded plaintiff $5,000 in attorney fees.

On appeal, defendant raises 13 assignments of error. We affirm the first 12 assignments of error without discussion and write only to discuss defendant's claim that plaintiff was not the "prevailing party" for the purposes of ORS 659.121(1). (3) On that point, it is helpful to note what is not at issue in this case. This is not a case in which the jury awarded plaintiff nominal damages, nor is this a case in which the court awarded plaintiff some but not all of the equitable relief she sought. See Bolton v. Murray Envelope Corp., 553 F2d 881, 883-84 (5th Cir 1977) (even though the plaintiff failed to establish racial discrimination against him personally, attorney fees were appropriate because the plaintiff successfully sued on behalf of the class of which he was member). Similarly, plaintiff has not argued that her employment discrimination claim was the catalyst that caused defendant to change its discriminatory policies. See Parham v. Southwestern Bell Telephone Co., 433 F2d 421, 429-30 (8th Cir 1970). Rather, the question presented by this case is a far narrower one--whether a plaintiff who receives none of the relief that he or she sought other than a bare finding that the defendant acted improperly is a "prevailing party" for the purposes of ORS 659.121(1). (4)

ORS 659.121(1) provides that "[i]n any suit brought under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal." A court faced with a request for fees under ORS 659.121(1) must answer two questions. The first is whether the party seeking fees is "the prevailing party" on that claim. If the answer to the first question is "yes," the second question is whether the court should, in the exercise of its discretion, award the prevailing party attorney fees. In answering the second question, we have explained that ORS chapter 659 "is patterned after Title VII of the federal 1964 Civil Rights Act, 42 USC