Burke v. Mattis

315 F.Supp.3d 907

Patricia BURKE, Plaintiff,

v.James MATTIS, Secretary, United States Department of Defense, Defendant.

Case No. 1:16–cv–1256

United States District Court, E.D. Virginia, Alexandria Division.

Signed June 4, 2018

Jacob Madison Small, Benjamin Robert Inman, J. Madison PLC, McLean, VA, for Plaintiff.

Andrew Han, Kimere Jane Kimball, Lauren A. Wetzler, U.S. Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

Liam O'Grady, United States District Judge

This matter comes before the Court on Plaintiff's Motion for Attorney's Fees (Dkt. 139) and Bill of Costs (Dkt. 138). The motion for attorney's fees is fully briefed and the Court heard oral argument on April 6, 2018. For the reasons below and for good cause shown, the motion for attorney's fees is GRANTED. The Court awards Plaintiff attorney's fees of $336,034.32, nontaxable costs of $29,871.12, and taxable costs of $17,143.58.

I. Background

Following a seven day trial, a jury returned a verdict in favor of Plaintiff Patricia Burke, finding that Ms. Burke's employer, the Defense Security Service (DSS), subjected her to a retaliatory hostile work environment in violation of Title VII and the Rehabilitation Act after she filed a formal complaint of gender discrimination. She was awarded $1 in damages. Evidence presented at trial included testimony that William Stephens, a manager at DSS supervising Ms. Burke, directly retaliated against Ms. Burke; that Mr. Stephens discussed with another DSS manager a tactic of isolating and harming the self-esteem of employees who file complaints; that Mr. Stephens previously retaliated against DSS employees using those tactics; that DSS managers interfered with the Equal Employment Opportunity (EEO) Office investigation into Ms. Burke's complaints; and that the EEO Office was aligned under the DSS Director's Chief of Staff instead of immediately under the Director. Accordingly, Plaintiff sought and the Court granted injunctive relief. The granted relief was designed to broadly address apparent deficiencies in DSS's EEO program as well as to specifically ensure that Ms. Burke could no longer be subject to retaliation under the supervision of the same individuals who retaliated against her in the first place.

Plaintiff has now moved for an award of attorney's fees of $406,085.28, nontaxable costs of $33,182.08, and taxable costs of $18,508.97.

II. Legal Standard

Under the American Rule, a prevailing litigant is generally not entitled to recover attorney's fees from the non-prevailing litigant unless a statute or contract provides otherwise. Baker Botts L.L.P. v. ASARCO LLC , ––– U.S. ––––, 135 S.Ct. 2158, 2164, 192 L.Ed.2d 208 (2015). The Court has discretion to award attorney's fees in successful Title VII cases. 42 U.S.C. § 2000e–5(k). If a party is entitled to recover attorney's fees, to calculate the award the Court "must first determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate." Robinson v. Equifax Info. Servs., LLC , 560 F.3d 235, 243 (4th Cir. 2009). In determining the reasonable number of hours and a reasonable rate, the court may consider the twelve factors set out in Johnson v. Georgia Highway Express Inc. :

(1) The time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards in similar cases.

488 F.2d 714, 717–19 (5th Cir. 1974). Although each of the twelve factors carries persuasive weight, "[t]he Court need not address all twelve ... factors independently" because they are each ultimately "subsumed" into the evaluation of what represents a reasonable rate and number of hours expended. Smith v. Loudoun Cty. Pub. Sch. , 2017 WL 176510 at *2 (E.D. Va. Jan. 17, 2017) (quoting Wells Fargo Bank, Nat. Ass'n v. Walls , 2013 WL 869902 at *2 (E.D. Va. Mar. 4, 2013), aff'd sub nom , 543 Fed.Appx. 350 (4th Cir. 2013) ). There is "a strong presumption that the lodestar represents the reasonable fee." City of Burlington v. Dague , 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992) (internal quotation marks omitted). After the lodestar figure is calculated, "the court must subtract fees for hours spent on unsuccessful claims unrelated to successful ones." McAfee v. Boczar , 738 F.3d 81, 88 (4th Cir. 2013). Finally, the court "award[s] some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff." Id.

III. Discussion

This memorandum sets forth Plaintiff's entitlement to the requested fees, the reasonableness of those fees, and Plaintiff's entitlement to costs.

A. Entitlement to Fees

This case was brought under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. As noted, the Court has discretion to award attorney's fees in successful Title VII cases. 42 U.S.C. § 2000e–5(k). As a threshold matter, the parties debate whether attorney's fees are appropriate where the jury awarded only nominal damages. Defendant notes, "[i]f the prevailing party has recovered only nominal damages, the Supreme Court has explained that ‘the only reasonable fee is usually no fee at all.’ " Mercer v. Duke Univ. , 401 F.3d 199, 204 (4th Cir. 2005) (quoting Farrar v. Hobby , 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ). To be sure, "the awarding of nominal damages ... highlights the plaintiff's failure to prove actual compensable injury." Farrar , 506 U.S. at 115, 113 S.Ct. 566. However, as Justice O'Connor noted in her concurrence, Farrar should apply where a plaintiff "has obtained only a Pyrrhic victory for which the reasonable fee is zero." Id. at 117, 113 S.Ct. 566. However, not "all nominal damages awards are de minimis. Nominal relief does not necessarily a nominal victory make." Id. at 121, 113 S.Ct. 566. Courts must consider the extent of relief, significance of the legal issue on which the plaintiff prevailed, and the public purpose served. Id. at 204.

Properly assessing the extent of the relief obtained requires comparing the amount of the damages sought to the amount awarded. Mercer , 401 F.3d at 204. Defendant seeks to emphasize the Mercer court's focus on damages and cabins its argument to focus on the extent to which Ms. Burke sought compensatory damages compared to how much the jury awarded. However, nothing in Mercer suggests that the Fourth Circuit had any intention to remove injunctive relief from the Farrar analysis; the facts in Mercer simply did not involve injunctive relief. Here, the Court fashioned significant injunctive relief complementing the nominal damages award. Accordingly, this factor favors an award of attorney's fees.

As to the significance of the legal issues, the Court agrees with Defendant that this case was not novel, did not establish important precedent, or otherwise advance the law. See Pitrolo v. Cnty. of Buncombe, N.C. , 589 Fed.Appx. 619, 630 (4th Cir. 2014). The legal issues here were straightforward and the case largely turned on facts and the credibility of witnesses. But again, the injunctive relief granted in this case was unique, shaped to address an exceptional and disturbing set of facts that demonstrated a tolerance for unlawful conduct in the highest ranks of the DSS, even after the jury returned its verdict in this case. While Ms. Burke's victory at trial was in many ways Pyrrhic, DSS seemed to treat it as a nullity, taking literally no action to ensure that the unlawful conduct ceased following the verdict. These facts demonstrate that the litigation served a significant public purpose, establishing that a federal agency with significant national security responsibilities had a systemic problem abiding by its basic obligations under federal civil rights laws, even after the jury returned its verdict. The Court assumed that the verdict alone would be sufficient to deter similar misconduct in the future. Yet after the verdict, Ms. Burke continued to experience a retaliatory work environment.

Defendant falls back on an argument that "courts may consider a plaintiff's refusal of a settlement offer as one of several proportionality factors guiding their exercise of discretion." Sheppard v. Riverview Nursing Ctr., Inc. , 88 F.3d 1332, 1337 (4th Cir. 1996). Again, Defendant focuses heavily on monetary offers during the settlement negotiations to reach the conclusion that "because Plaintiff ultimately received only nominal damages from the jury, her refusal of Defendant's substantial settlement offers " ‘promotes few public interests.’ " Dkt. 148, at 10 (quoting Pitrolo , 589 Fed.Appx. at 631 ). The Court has reviewed the settlement offers and counteroffers between the parties and can only conclude that Plaintiff's offers of settlement, all of which included requests that align with the significant equitable relief granted in this case, more accurately reflect the totality of relief ultimately awarded in this case. This is particularly true in light of the low dollar amounts offered by Defendant that were inclusive of fees, now awarded here.

For these reasons, Plaintiff is entitled to an award of attorney's fees.

B. Lodestar Calculation

The Court determines the lodestar figure by calculating the reasonable hourly rates and the reasonable number of hours expended. Robinson , 560 F.3d at 243. The reasonable rate is calculated according to the prevailing market rates in the relevant community factoring...