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Fox v. Pittsburg State University

United States District Court, D. Kansas

June 26, 2017

MARTHA FOX, Plaintiff,
v.
PITTSBURG STATE UNIVERSITY, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

         This employment discrimination action was tried to a jury, which found in favor of Plaintiff Martha Fox on her claims of hostile work environment sexual harassment under Title VII and Title IX against Defendant Pittsburg State University (“PSU”). This matter comes before the Court on Plaintiff's Motion to Alter Judgment for Attorneys' Fees and Costs (Doc. 211). In conjunction with Plaintiff's fee application, the Court also considers Defendant's Motion to Strike Plaintiff's Reply Brief in Support of Attorneys' Fees and Costs (Doc. 243). The motions are fully briefed, and the Court is prepared to rule. As explained more fully below, Plaintiff's motion for attorneys' fees and costs is granted in part and denied in part. Defendant's motion to strike the reply brief is denied.

         I. Background

         A complete factual background of this case has been recounted in detail in both the summary judgment Order and in the Court's Order ruling on the merits-based post trial motions.[1]The Court incorporates by reference this factual matter to the extent it is relevant to the fee dispute here. This matter arose out of Fox's employment as a custodial specialist at PSU between July 2010 and November 2015. Plaintiff contended that she was subjected to sexual harassment from April 2012 to March 2014. This was perpetrated by Custodial Supervisor Jana Giles and custodian Cathy Butler Brown. Plaintiff complained to members of the custodial management, including Wanda Endicott and Kevin Malle. However, when Plaintiff complained of the sexual harassment, Plaintiff contended that nothing was done to stop or deter the conduct.

         In February 2014, Plaintiff complained to Cindy Johnson, the Director of Equal Opportunity and Affirmative Action, about the ongoing sexual harassment. Plaintiff alleged Defendant failed to properly investigate the complaints because Johnson refused to interview witnesses. Plaintiff contended she was told that the claim was not investigated because Johnson feared it would start a “firestorm.” Plaintiff alleged she did not receive sexual harassment training until after the alleged harassment took place. Plaintiff alleged she suffered emotional distress damages as a result of the sexual harassment endured. Plaintiff's Complaint alleged hostile work environment sexual harassment in violation of Title VII and Title IX and retaliation in violation of Title VII and Title IX.

         Although a relatively straight-forward employment discrimination case, this matter has been vigorously defended since it was filed on December 2, 2014.[2] Defendant produced 5, 000 documents in this matter. Defendant made an inordinate amount of discovery requests. Defendant filed two motions to compel.[3] United States Magistrate Judge Kenneth Gale granted in part and denied in part the first motion to compel, and granted in part and denied in part the second motion to compel.[4] Defendant offered the expert testimony of Dr. Thomas Anderson, and Plaintiff filed a Daubert motion seeking exclusion of that expert, which was granted.[5]Defendant filed a motion for summary judgment that spanned 64 pages with 484 pages of exhibits.[6] The Court granted summary judgment on the claims of retaliation under Title VII and Title IX, and denied summary judgment on the claims of hostile work environment sexual harassment under Title VII and Title IX.[7] Defendant filed a motion to reconsider the Court's exclusion of Dr. Anderson, which was denied.[8] Defendant filed a 25-page motion in limine containing 36 objections for the Court to rule on, and Plaintiff filed a 12-page motion in limine.[9]Plaintiff listed six witnesses on her final witness compared to twenty witnesses listed on Defendant's final witness list.[10] Following a 7-day jury trial, the jury rendered a verdict of $100, 000 on the Title VII and $130, 000 on the Title IX hostile work environment sexual harassment claims. During post-trial motion briefing, Defendant filed two renewed motions for judgment as a matter of law to each claim in contravention of the Federal Rules of Civil Procedure.[11] Defendant also filed a motion for a new trial.[12] The post-trial briefing in this matter spanned 199 pages in total without exhibits. The Court issued an order on the post-trial motions of nearly 70 pages to address the inordinate number of arguments made in the post-trial briefing.

         Consistent with its incredibly abusive briefing tactics, Defendant filed two response briefs to Plaintiff's one motion for attorneys' fees and costs- one response to the request for attorneys' fees[13] and another response to the request for an award of costs.[14] Both of these responses were disproportionately lengthy given Plaintiff's 15-page brief combining the motion for attorneys' fees and costs. Defendant's response to the attorneys' fees motion spanned 29 pages with 73 pages of exhibits, and Defendant's response to the costs spanned 19 pages with 7 pages of exhibits. Beyond the substantive briefing on attorneys' fees and costs, Defendant filed a motion to strike Plaintiff's reply addressing both the attorneys' fees and costs.[15] Throughout this litigation, Defendant has filed extensive briefing in circumvention of the page limitation in Local Rule 7.1(e) without seeking leave from the Court. Defendant's strategy when handling this matter has been litigious, vexatious, unprofessional, [16] and contrary to the spirit of the Federal Rules of Civil Procedure and the local rules of this Court.[17] Largely for this reason, the Court grants Plaintiff an award of reasonable attorneys' fees that is higher than what would be expected in a typical case alleging similar claims. Unfortunately, this behavior has run up substantial attorneys' fees, but Defendant has only itself to blame.

         II. Discussion

         A. Motion to Strike Reply

         Defendant argues Plaintiff's reply brief to the motion for attorneys' fees and costs should be stricken under Federal Rule of Civil Procedure Rule 12(f). Specifically, Defendant requests the Court strike the nine exhibits filed with the reply and new arguments made in the reply. Rule 12(f) provides “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Plaintiff's reply is not a “pleading” that the Court may strike under Rule 12(f).[18] Thus, this rule is not the proper procedure for a motion to strike.

         In any event, Defendant does not identify and the Court cannot find new arguments in the reply. Merely stating Plaintiff raised new arguments is insufficient and not well taken by the Court. As to the nine exhibits attached to the reply, the Court finds these are all responsive to arguments raised in Defendant's response.[19] There is nothing in the reply that should have been an unfair surprise to Defendant.

         Further, even assuming Plaintiff's reply raised new arguments, the Court also concludes a motion to strike is not the proper procedure here. When a reply raises a new argument, “the proper course of action for the nonmoving party to respond to such arguments is to seek leave to file a surreply.”[20] Thus, the motion to strike Plaintiff's reply is denied.

         B. Attorneys' Fees

         Plaintiff requests $278, 808 in attorneys' fees for counsel Matthew O'Laughlin and Amy Maloney and legal assistant Robin Henshaw. In Title VII and Title IX cases, a district court, “in its discretion, may allow the prevailing party . . . a reasonable attorney's fee.”[21] To obtain attorneys' fees, “a claimant must prove two elements: (1) that the claimant was the ‘prevailing party' in the proceeding; and (2) that the claimant's fee request is ‘reasonable.'”[22] Defendant contests both Plaintiff's status as the prevailing party and the reasonableness of the request for attorneys' fees.

         1. Duty to Meet and Confer

         Under District of Kansas Local Rule 54.2(a), a party who moves for statutory attorney's fees pursuant to Fed.R.Civ.P. 54(d)(2) must initiate consultation with the other party. Where the parties cannot come to agreement, the moving party must file a statement of consultation, which includes the date of consultation, the names of those who participated, and the results achieved.[23] Plaintiff complied with this rule as is evidenced in Exhibit A to her motion.[24] The parties had a telephone conference on November 7, 2016, where Mr. O'Laughlin represented Plaintiff and Ms. Casement represented Defendant. The parties exchanged documentation and Plaintiff agreed to cut some time entries, but the parties were not able to come to an agreement. On November 8, 2016, Ms. Casement emailed on behalf of Defendant that it would not be able to stipulate to any attorneys' fees and costs. Thus, the Court is satisfied the parties attempted to meet and confer.

         2. Prevailing Party

         Defendant contends Plaintiff is not the prevailing party for purposes of attorneys' fees because Plaintiff had her two retaliation claims dismissed at summary judgment. Thus, Defendant infers that Plaintiff is not the prevailing party for 50% of her claims. A prevailing party is one that succeeds “on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit.”[25] The Tenth Circuit does not hold a party is not a prevailing party merely because it failed on some claims.[26] Rather, the Tenth Circuit has held “where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee.”[27] However, if the plaintiff presents multiple related claims, “failure on some claims should not preclude full recovery [of attorney's fees] if [the] plaintiff achieves success on a significant, interrelated claim.”[28] Where a lawsuit consists of related claims, “a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the district court did not adopt each contention raised.”[29] For purposes of attorneys' fees, the Tenth Circuit holds claims are related if they are based on a common core of facts or are based on related legal theories.[30]

         Although Plaintiff was unsuccessful on her retaliation claims, Plaintiff is still the prevailing party for purposes of awarding attorneys' fees. To the extent Defendant argues Plaintiff's hours should be reduced, this Court concludes Plaintiff's successful sexual harassment claims and her unsuccessful retaliation claims came from a common core of facts with related legal theories. Evidence presented in support of the sexual harassment claims was often also relevant to the claims of retaliation. As such, compensation should not be awarded on a claim-by-claim basis. Instead, the Court concentrates on the significance of the overall relief, which was a $230, 000 verdict in Plaintiff's favor. This was substantial relief despite Plaintiff not requesting an exact figure for damages in the Complaint. Although Plaintiff's counsel does not need to reduce hours to reflect the dismissed retaliation claims, the Court is satisfied Plaintiff's counsel has self-reduced time working on the retaliations claim.[31]

         3. Reasonable Attorneys' Fees

         Plaintiff requests fees for approximately 798.8 hours of work by two attorneys and one legal assistant, for a total request of $278, 808 in attorneys' fees. Once a party has established its entitlement to fees as a prevailing party, the Court must determine what fee is reasonable.[32] In determining reasonable attorneys' fees, the starting point for determining the amount of a reasonable fee is the “lodestar” figure-“the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”[33] If a party is seeking compensation for services of a non-lawyer, such as a legal assistant, the court must scrutinize the reported hours and suggested rates in the same manner.[34] The party seeking an award of fees has the burden of proving both the number of hours spent and reasonableness of the hourly rates.[35] Once this burden is met, a claimant is entitled to the presumption this lodestar amount reflects a “reasonable” fee.[36]

         Once the court determines the lodestar, it must then determine whether any upward or downward adjustments should be made to the lodestar “to account for the particularities of the suit and its outcome.”[37] In assessing whether adjustments should be made, courts often consider the twelve factors set out in Johnson v. Georgia Highway Express, Inc., which include:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required; (4) preclusion of other employment; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorney's; (10) the undesirability of the case; (11) the nature and relationship of the professional relationship with the client; and (12) awards in similar cases.[38]

         It is rare that all factors are met.[39] Although these factors may be considered, the court does not need to consider “the factors [] subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.”[40] The lodestar calculation is meant to be the primary consideration when awarding fees rather than the Johnson factors.[41]

         a. Reasonable Hours

         After litigating this case since 2014, Plaintiff submitted time records showing her counsel and the legal assistant spent 798.8 hours working on this matter. Mr. O'Laughlin was the primary attorney in the matter, and he submitted records showing 593.5 hours spent from March 2014 to January 2017.[42] Ms. Maloney, the other attorney in this matter, submitted records showing she spent 142.3 hours from November 2014 to October 2016.[43] Ms. Henshaw, the legal assistant, spent 63 hours from September to October 2016 on matters primarily related to trial preparation.[44]

         i. Objections

         Defendant's objections to the hours expended by Plaintiff's timekeepers fall into ten categories: (1) vague, sloppy, imprecise time entries, (2) clerical work, (3) duplicative work, (4) background research, (5) travel time, (6) block billing, (7) motion to compel, (8) failure to exclude work on the retaliation claim, (9) trial preparation and attendance and (10) excessive hours. The Court will address each category of objections before analyzing the reasonableness of the hours expended.

         Vague, Sloppy, Imprecise Time Entries.

         Defendant argues a number of Mr. O'Laughlin and Ms. Maloney's time entries are impermissibly vague. Plaintiff's burden in an application for attorneys' fees is to “prove and establish the reasonableness of each dollar, each hour, above zero.”[45] “Plaintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended. But at least counsel should identify the general subject matter of his time expenditures.”[46] When examining the adequacy of an attorney's billing entries, the court is primarily concerned with evaluating the propriety of the fee request based on the specific billing entries.[47] After a thorough review of Defendant's brief and the appended line-by-line objections to the billing submitted, Defendant only objected to a few entries as vague. Defendant objects to Ms. Maloney's entry of working on the exhibit list as vague. This is not vague, as the entry undoubtedly refers to the exhibit list presented to the Court.[48] Defendant objects to Mr. O'Laughlin's entry of “review emails from client.” This is not vague. Undoubtedly, Mr. O'Laughlin could not have been more specific as to the content of the emails because of attorney-client privilege. Defendant objects to Mr. O'Laughlin's entries stating he was preparing for depositions of various, individually-named witnesses. This is not vague. Defendant objects to time spent analyzing individual deposition testimony for purposes of opposing summary judgment. This is not vague.[49] Defendant objects to time spent reviewing Defendant's exhibits for objections. This is not vague, as it relates to the exhibit list Defendant submitted to the Court. Defendant objects to Mr. O'Laughlin's entries for researching and analyzing case law on Fed.R.Evid. 106 and audio recordings, harassment outside of work, relevance of employer policies, and subsequent remedial measures. These are not vague, as they relate to issues raised in Defendant's motion in limine. Further, entries stating that Mr. O'Laughlin worked on an opposition to Defendant's motion in limine and prepared for the hearing on the motion in limine are also not vague. This objection is overruled as there are no impermissibly vague entries in Mr. O'Laughlin or Ms. Maloney's billing statements.

         Clerical Work.

         “Purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.”[50] Thus, “purely clerical or secretarial tasks” should also not be billed at an attorney rate either.[51] The court must deduct “[t]asks that amount to filing, organizing files, making copies, printing, ordering file folders, organizing boxes, updating files with correspondence and pleadings, and preparing files for storage.”[52] Rather, “factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence” are properly paralegal work that may be performed under attorney supervision.[53]

         As to Mr. O'Laughlin and Ms. Maloney's time that is alleged to be “clerical, ” the Court finds these arguments to be without merit. It is not clerical to read this Court's Order regarding a motion to compel to determine what evidence must be produced. It is not clerical to listen and note audio exhibits in preparation for trial. It is not clerical to summarize deposition testimony of a witness for purposes of trial if the attorney is examining the witness.[54] Both of these matters require a legally trained mind to determine the passages necessary to meet the elements of the underlying legal claim. It is not clerical to email opposing counsel regarding scheduling, the subject of phone conferences, and legal issues in the case.[55] It is not clerical to review and work on a juror chart. It is not clerical to email the client to set up depositions and subpoenas. It is not clerical to review Plaintiff's social media accounts to determine the postings relating to emotional state for discovery production in compliance with the Court's motion to compel order. It is not clerical to authorize and facilitate disclosure of phone records from a third party to comply with the Court's motion to compel order. It is not clerical to determine the exhibits necessary for trial for purposes of an exhibit list. It is not clerical to file a motion to file under seal. It is not clerical to file motions for extension of time for expert disclosures, to file a response to the motion to compel, and to file dispositive motions.[56]

         As to Ms. Henshaw's hours, many appear to be purely clerical or secretarial tasks that must be deducted. In preparing the exhibits, Ms. Henshaw listed 13.5 hours of collecting, scanning, and labeling. Ms. Henshaw also prepared exhibit notebooks for 11.0 hours.[57] She prepared a scandisk for 1.5 hours. She researched video files for creating .wav version for 4.5 hours. These are purely secretarial or clerical in nature, much like printing, copying, or organizing. They are not properly compensable even at a legal assistant rate. The Court will reduce Ms. Henshaw's hours by 30.5 hours.

         Duplicative Work.

         Defendant requests that Ms. Maloney's fee request be denied in toto as duplicative of Mr. O'Laughlin. The Tenth Circuit has cautioned that in determining the reasonableness of hours, it should look for the potential duplication of services.[58] “For example, [if] three attorneys are present at a hearing when one would suffice, compensation should be denied for excess time.”[59] The court can look to how many lawyers the other side utilized in similar situations as an indication of the effort required.[60]

         Ms. Maloney's work on this matter can be put into two categories - (1) reviewing and editing and (2) conducting the trial as co-counsel. As to the first category-reviewing and editing-Ms. Maloney spent .4 hours editing the Complaint, .2 editing discovery, .3 editing the proposed pretrial order, .8 hours editing the response to the first motion to compel, .4 hours editing the response to the second motion to compel, .9 hours editing the motion to exclude the expert witness, .4 hours editing the reply to the motion to exclude, and 1.8 hours analyzing and editing the response to summary judgment. The Court does not find these hours duplicative of Mr. O'Laughlin's work. As most attorneys know, the drafting process and editing process for legal writing are different. These hours would be properly billed to a client. Therefore, to the extent Defendant objects to Ms. Maloney's editing, the Court overrules this objection and determines no reduction is necessary.

         As to the second category-conducting the trial as co-counsel-Ms. Maloney spent time working on voir dire, preparing for cross examination of witnesses who were not deposed, preparing for direct examination of Rick Fox, Sandra Brown, and Blake Cameron, preparing for cross examination of Sue Anne Barnes, Michelle Sexton, Terri Centers, Kay Lynn Jiles, Claude Reno, and Joanne Britz, and preparing for closing arguments. These were all parts of the trial she presented. Upon review of the time records, Mr. O'Laughlin had 1.9 hours listed for preparing for cross examination of Terri Centers and Claude Reno, as well as several other witnesses who had not been deposed. The Court finds this duplicative of Ms. Maloney's effort and will reduce Mr. O'Laughlin's hours for 2016 by 1.9 hours.

         Further, Ms. Maloney billed for the entirety of her time at trial, even when Mr. O'Laughlin was examining witnesses or presenting argument. There is no law that Ms. Maloney should not bill for time spent at the courthouse when Mr. O'Laughlin was conducting the trial. The Court notes Ms. Willoughby accompanied Ms. Casement at trial. While Defendant contends it would not have billed for Ms. Casement and Ms. Willoughby, this is a mere conjecture and not permissible argument. Ms. Maloney did not duplicate Mr. O'Laughlin's work at trial. Both counsel were active participants in the trial, including both examining witnesses, both lodging objections, and both speaking at closing argument. It is not uncommon for an attorney to have several other attorneys at trial to take notes, listen closely to witness testimony, and help with exhibits. For this case, where Defendant listed 20 witnesses, the Court cannot fault Plaintiff for employing two counsel for trial to distribute the work. There is nothing duplicative about Ms. Maloney's presence at trial, and she was not merely meant for “convenience” as Defendant suggests. The Court overrules Defendant's objection that Ms. Maloney's fee request should be denied in toto.

         Background Research.

         Time spent reading background material designed to familiarize an attorney with an area of law is presumptively unreasonable.[61] When counsel is inexperienced, a losing party is not obligated to pay for that counsel's legal education.[62] Hours spent by counsel on background research to familiarize themselves with the general area of law should be absorbed into the overhead of the firm.[63] The Court has reviewed the objected-to entries. Most of the research was related to specific legal argument raised in motions practice, the in limine motions, trial, or in conference between counsel.[64] However, there were several entries that were background research to familiarize the attorney with an area of law. For example, Mr. O'Laughlin admitted he never filed a Daubert motion prior to this case, so he spent time familiarizing himself with that area of law. Also, Ms. Maloney spent significant time researching Title IX in employment discrimination, which was not tied to a motion or an issue being litigated at the time it was billed. The Court has identified 11 hours in 2015 and 2.2 hours in 2016 from Mr. O'Laughlin and .9 hours in 2014 from Ms. Maloney that are background research and must be deducted.

         Travel Time.

         Defendant argues counsel's travel time is not compensable.[65] Travel time should not be compensated at the full hourly rate because such time is inherently unproductive.[66]“Although some attorneys customarily charge for such time at their full hourly rate, the Court believes that the most reasonable approach is to allow counsel to recover 50 percent of travel time.”[67] Ms. Maloney reduced her travel time from .5 to .2 for each day she traveled to trial.[68]Mr. O'Laughlin reduced his travel time from Kansas City to Pittsburg State University for depositions from 2.5 to 1.2, from Kansas City to Topeka for depositions from 2.4 to 1.2, and from his office to the Court from .5 to .2. Thus, the Court is satisfied that the hours for travel time have already properly been reduced. This objection is overruled.

         Block Billing.

         “Block billing” is the practice of lumping multiple tasks into a single entry of time such that the billing entry does not delineate how hours were allotted to specific tasks.[69] The Tenth Circuit discourages block billing, and if the party demanding fees has submitted time records including block billing, the court can apply a general reduction to the requested fees.[70] Defendant alleges block billing with regards to three entries. “Working on opening statements” for 2.0 hours is not prohibited block billing. “Trial preparation: review and revise examination outlines and opening statement” for 7.5 hours is not block billing. “Draft Closing Argument” for 2.0 hours and “Revisions to Closing Argument” for 1.5 hours are not block billing. Upon the Court's review of the billing statements, there are no entries that are improper block billing. This objection is overruled.

         Motion to Compel.

         Defendant argues Plaintiff cannot recover attorneys' fees for the time spent on a discovery matter in which she was compelled to produce a document. Defendant points the Court to no authority for the proposition that time spent on unsuccessful motions are not recoverable. In Garcia v. Tyson Foods, Inc., the Court considered whether to deduct hours for the time the plaintiff's counsel spent drafting unsuccessful motions to compel.[71] The Court did not deduct the hours spent because in its discretion, it determined the motions to compel were neither frivolous nor unnecessary.[72] Here, Plaintiff's failure to produce the requested documents, which led Defendant to file a motion to compel, was neither frivolous nor unnecessary. In fact, both motions to compel were granted in part and denied in part.[73] The Court will neither deduct time spent responding to the motion to compel, nor time spent producing documents after the grant of the motion to compel.

         Failure to Exclude Hours Related to Retaliation Claim.

         As the Court stated above in connection with the prevailing party analysis, the Court is satisfied that Plaintiff's counsel reduced hours related to the previously dismissed retaliation claims although they were not required to. Based on the time records, hours were reasonably reduced in connection with preparing the Complaint and summary judgment briefs to reflect time presumably spent researching, drafting, and analyzing retaliation. Thus, the Court overrules this objection.

         Trial Preparation and Attendance.

         Defendant makes three objections to the hours Plaintiff's counsel spent preparing for trial with no citation to authority. First, Defendant argues Plaintiff's counsel prepared a cast of characters, master timeline, and case timeline that were not used as demonstratives at trial. Second, Defendant argues Plaintiff prepared for witnesses that were not present at trial. Third, Defendant argues Plaintiff's counsel should not recover for time spent at trial where only one attorney was questioning or arguing, or for time spent waiting for the verdict. The Court finds them without merit.

         First, the cast of characters, master timeline, and big picture timeline are properly billed as trial preparation. There is no indication that these materials were ever intended as demonstrative exhibits. It is reasonable to assume that Mr. O'Laughlin and Ms. Maloney used these for personal reasons during trial as there was a long list of witnesses, events, and dates. It is entirely reasonable to bill a client for work product prepared in preparation for trial, so it is properly billed here.

         Second, Defendant objects to Ms. Maloney preparing to cross examine Terri Centers, Claude Reno, and James Cook and Mr. O'Laughlin preparing to cross examine Terri Centers, Claude Reno, Jack Freeman, and Rob Hunt, none of whom testified at trial. However, these witnesses were all listed on the witness list, [74] and Defendant subpoenaed Reno to testify.[75] Plaintiff's counsel had to prepare in case Defendant decided to call these witnesses.[76] Once again, it is Defendant that offered the witnesses. It cannot now object because cost was incurred to prepare for their cross-examinations. Therefore, this trial preparation was reasonable subject to the prior reduction for cross examination preparation outlined in the Court's consideration of whether Ms. Maloney and Mr. O'Laughlin duplicated services.

         Third, Defendant objects to Ms. Maloney and Mr. O'Laughlin submitting time for attending trial each day because only one counsel was questioning or arguing at a given time. Although the Court addressed this matter when considering whether Ms. Maloney's work was duplicative, the Court will briefly re-address this argument. Both counsel were present at trial and listening to testimony. Both counsel were taking notes and helping with exhibits. There is no reason both counsel should not be compensated for the time spent in the courtroom as the time was productive and beneficial to the client. Further, Defendant objects to Ms. Maloney and Mr. O'Laughlin charging for time spent waiting for the verdict. Counsel must be present to take jury questions and wait for the jury verdict. As the Court recalls, both Ms. Casement and Ms. Willoughby were present and waited for the jury at those times. It appears both Ms. Maloney and Mr. O'Laughlin cut the time spent waiting for the verdict in half. The Court finds this proper because just like travel time, waiting for the verdict is necessarily unproductive yet a part of the jury trial process. The Court is satisfied that this is proper. The Court overrules this objection.

         Excessive Hours.

         Defendant objects to excessive hours spent on three specific categories of tasks-(1) summary judgment, (2) discovery responses, and (3) drafting the opening statement and closing argument. First, the hours spent on summary judgment were reasonable in light of its brevity. Defendant objects to the approximately 17.4 hours Plaintiff's counsel spent working on responding to the statements of fact in the summary judgment motion. The Court finds these hours entirely reasonable given the volume of Defendant's statements of fact, and the need to respond to each fact. Plaintiff also presented 123 of her own statements of fact. The Court determines no reduction is necessary. Second, the 13.2 hours spent responding to, finalizing with the client, and producing discovery are entirely reasonable. While Defendant argues that Plaintiff submitted “canned” objections and answers to discovery, there is still a significant amount of time spent determining how to answer interrogatories, determining what documents Plaintiff possesses that may be responsive to discovery requests, and crafting a thorough response. The Court further finds this amount of time reasonable because of the volume of discovery. Third, the 5.5 hours Mr. O'Laughlin spent drafting the opening statement and closing argument was not unreasonable. The opening statement and closing argument were not “canned” as Defendant suggests. The time spent preparing was reasonable. The Court overrules this objection.

         ii. Reasonable Hours Standard

         Beyond Defendant's objections, the Court still must consider the amount of hours reasonably expended by Plaintiff's counsel. In order for the applicant to satisfy its burden of proving the number of hours reasonably spent on the litigation, the party must submit “meticulous, contemporaneous time records that reveal all hours for which compensation is requested and how those hours were allotted to specific tasks.”[77] A district court is justified in reducing the reasonable number of hours if the attorney's time records are “sloppy and imprecise” and fail to document adequately how he or she utilized large blocks of time.[78]

         Once the court has adequate time records before it, it must determine whether Plaintiff's counsel has exercised billing judgment with respect to the number of hours worked and billed.[79]Billing judgment consists of winnowing hours actually expended down to hours reasonably expended.[80] Hours that an attorney would not bill to his or her client cannot reasonably be billed to the adverse party.[81]

         After examining the specific tasks and whether they are properly chargeable, the court should look at the hours expended on each task.[82] This determination requires the Court to consider such factors as the complexity of the case, the number of reasonable strategies pursued, and the responses necessitated by the maneuvering of the other side, and potential duplication of services.[83] There is no requirement the court identify and justify each disallowed hour or announce what hours are permitted for each legal task.[84] Rather, “[a] general reduction of hours claimed in order to achieve what the court determines to be a reasonable number is not an erroneous method, so long as there is sufficient reason for its use.”[85]

         Detailed Records Kept.

         As the Court explained above, it is satisfied that the time records in this matter were meticulous and contemporaneously kept as opposed to sloppy and imprecise. Ms. Maloney and Mr. O'Laughlin submitted thorough time records detailing each task completed.[86] Ms. Henshaw also submitted time records detailing her work in the month before trial.[87] Because these are adequate time records, the Court finds no reason to reduce the hours on this basis.

         Hours Properly Chargeable.

         Plaintiff's counsel has exercised a large amount of billing judgment. Defendant's counsel appended a visual aid to this motion showing Plaintiff's counsel had reduced nearly 10 percent of their total hours.[88] For example, according to Mr. O'Laughlin's time records, he deleted time spent for tasks like reviewing the EEOC investigation, emails for purposes of scheduling or administrative matters, reviewing the Court's orders on matters like summary judgment, and drafting motions for extension of time. Mr. O'Laughlin also reduced time spent on the previously dismissed retaliation claim, travel time, trial time, and time revising or editing briefs. Ms. Maloney also reduced a number of time entries for matters like emails for purpose of scheduling, drafting exhibit checklists for trial, travel time, reviewing minute entries on the docket, and meeting with Ms. Henshaw. Ms. Maloney also reduced a significant amount of time related to attending trial. The Court is satisfied Plaintiff's counsel exercised a proper amount of billing judgment.

         Hours Reasonably Expended.

         The Court finds the hours spent were reasonable when viewed in the context of Defendant's litigation tactics. The Tenth Circuit has long accepted the proposition that one of the factors useful in evaluating the reasonableness of the number of attorney's hours in a fee request is “the responses necessitated by the maneuvering of the other side.”[89] The Supreme Court has also recognized that the vigor of the opposing party is to be considered in the attorney's fee calculus.[90] As outlined at the outset of this Order, Defendant has engaged in extremely abusive briefing tactics in a relatively simple employment discrimination case, which for example, included filing two extensive motions for judgment as a matter of law, filing two responses to a motion for attorneys' fees and costs, filing an extensive summary judgment motion, and filing a motion to reconsider the Court's Daubert order. These filings required comprehensive and thorough responses from Plaintiff. The Court is intimately familiar with the facts of this case, the discovery disputes, motions practice, trial, and post-trial motions. The Court finds Defendant's overzealous defense of this litigation made Plaintiff expend substantial time, which makes the time look more reasonable, not less.[91]

         When viewing the specific tasks, Plaintiff's counsel's hours were reasonable. Plaintiff's counsel spent 58.5 hours to prepare for and take eight depositions, including the deposition of expert Dr. Anderson.[92] Plaintiff's counsel prepared her Daubert motion and reply brief in 43.2 hours, which is not regularly part of prosecuting an employment discrimination case. Plaintiff's counsel drafted her summary judgment response in 71.1 hours, despite having to respond to approximately forty pages of argument and 152 statements of fact. Plaintiff's counsel spent around 200 hours combined to prepare for trial, including pre-trial briefing for in limine motions and filing objections to witnesses, exhibits, jury instructions, and voir dire. Ms. Henshaw's hours, subject to the reductions made by the Court above, were reasonable in the month leading up to trial preparing and attending trial. This Court is satisfied that the case was prosecuted efficiently.

         b. Reasonable Hourly Rate

         The Court finds that the hourly rates in this matter must be reduced to be reasonable. For Mr. O'Laughlin, Plaintiff requests an hourly rate of $350 for 2014, $ 350 for 2015, $375 for 2016, and $375 for 2017. For Ms. Maloney, Plaintiff requests an hourly rate of $360 for 2014, $375 for 2015, and $400 for 2016. Plaintiff also requests an hourly rate of $65 for Ms. Henshaw.

         In setting the hourly rate, “the court should establish, from the information provided to it and from its own analysis of the level of performance and skill of each lawyer whose work is to be compensated, a billing rate for each lawyer based upon the norm for comparable private firm lawyers in the area in which the court sits, calculated as of the time the court awards fees.”[93] A reasonable hourly rate comports with rates “prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.”[94] The focus of the inquiry is on the rates of lawyers of comparable skill and experience.[95] A district court abuses its discretion when it ignores the parties' market evidence and sets an attorney hourly rate using the rate it consistently grants.[96] The district court may consider counsel's customary rate, but it is not conclusive evidence.[97] The district court may also consider the quality of representation.[98] If the court does not have before it adequate evidence of prevailing market rates, the court may, in its discretion, “use other relevant factors, including its own knowledge, to establish the rate.”[99]

         i. Relevant Market

         As a threshold matter, the Court must address the relevant market. Defendant argues the relevant market is Kansas City, Kansas, not Missouri. Defendant then infers Plaintiff's submissions of evidence of rates in Kansas City, Missouri are in error and should be disregarded. The relevant market is the place where the litigation occurs.[100] The case was tried in Kansas City, Kansas, but the courthouse is mere miles from the Missouri border.[101] Most of the practitioners in the district practice in both Kansas and Missouri. In fact, Ms. Maloney and Mr. O'Laughlin practice in both Kansas and Missouri, and they have an office in Kansas City, Missouri. These practitioners in the Kansas City metropolitan area do not change their rates based on whether the case is filed in Kansas City, Kansas or Kansas City, Missouri.[102] This Court finds the relevant market is the Kansas City metropolitan area, which includes Missouri and Kansas.[103] Thus, the submission of evidence relating to rates of both Kansas City, Kansas and Kansas City, Missouri are relevant.[104]

         ii. Plaintiff's Evidence of Reasonable Hourly Rate

         The Court has before it substantial evidence from Plaintiff that her counsels' rates are in line with the prevailing market rates for lawyers of comparable skill and experience practicing in the Kansas City area. Mr. O'Laughlin and Ms. Maloney submitted affidavits outlining their experience and skill and their customary rates for services.[105] Mr. O'Laughlin has practiced law for approximately fifteen years.[106] He is admitted to practice in Missouri, Illinois, Kansas, and Washington. He has devoted most of his practice to employment litigation. Since being admitted to practice, he has tried to a verdict eight jury trials and fourteen bench trials. He has seen a number of favorable verdicts for clients, including a $350, 000 verdict on a race discrimination claim under § 1981 and a $229, 952 verdict in a sexual harassment claim under the Missouri Human Rights Act. He has successfully argued a number of cases on appeal as well. He has considerable publication experience. He has received several distinctions in his practice, including Super Lawyer for Employment Litigation and National Advocates Top 100 Lawyers. He submitted that he worked as an associate for two civil defense firms in Kansas City where his rates were between $225 and $250 during 2009-2010. He also became Of Counsel at Holman Schiavone where he charged an hourly rate of $350 during 2013. He started his own firm with Ms. Maloney in 2016, and he raised his rate to $375 as a partner in the firm. He attests that his rates are reasonable and within the range of fees customarily charged in the prevailing market for an attorney with his background and experience.

         Ms. Maloney has practiced law for approximately seventeen years. She is admitted to practice in Kansas and Missouri. She has dedicated 95% of her practice to employment litigation. She clerked for United States District Court Judge Fernando J. Gaitan of the United States District Court for the Western District of Missouri. She began her career at Shook, Hardy & Bacon where she conducted numerous investigations of employment discrimination claims and counseled management on employment compliance issues. She served as a member of the Eighth Circuit Committee on Model Civil Jury Instructions. She has considerable publication and speaking experience on employment litigation. She has been successful in a number of appeals. She has tried thirteen cases to a verdict in state and federal court. She has seen a number of favorable verdicts for clients, including a $362, 000 verdict for one client. She received the distinction of Super Lawyers for Employment Litigation and Practice and Top 100 Attorneys in Kansas and Missouri. She has charged between $280 and $500 per hour since 2008. After starting her own firm with Mr. O'Laughlin in 2016, she has raised her rate to $400. She raised her non-contingency rate in 2016 from $400 to $500, which clients have paid. She attests that her rates are reasonable and within the range of fees customarily charged in the prevailing market for an attorney with her experience and ability.

         Plaintiff offers Ms. Henshaw's rate at $65 per hour. Plaintiff submits no information on the skills and experience of Ms. Henshaw. Plaintiff submits no information submitted regarding the rate of a legal assistant with comparable skill and experience in the market. Defendant submitted an affidavit of a practicing attorney that Kansas rates for paralegal work is between $35 to $95, so this is a mid-range rate.[107] The requested $65 is reasonable given the rates approved for legal assistants in other cases in this district.[108]

         Beyond her counsels' own affidavits, Plaintiff submits the affidavit of Richard Ralston as to the customary rates in Kansas City.[109] Richard Ralston is a member of the Missouri bar.[110]He was a United States Magistrate Judge in the Western District of Missouri from 1976 to 1988 where he presided over primarily civil cases. He has been in private practice since 1988 in the Kansas City area with firms including Polsinelli, Shalton & Welte, and Armstrong Teasdale. He started his own firm in 2009 called the Ralston Law Group LLC where he now serves as a trial attorney, mediator, and arbitrator. Mr. Ralston has known Mr. O'Laughlin for five years, and he is familiar with his trial and appellate practice. Mr. Ralston has known Ms. Maloney for seven years, and he is familiar with her trial and appellate practice. Based on his more than forty years of experience and review of the affidavits submitted, Mr. Ralston attests that the hourly rates Ms. Maloney and Mr. O'Laughlin requested are fair, reasonable and comparable to hourly rates charged by other attorneys in the Kansas City, Kansas market.

         Plaintiff cites a number of recent employment cases in the district with similar or higher hourly rates. In 2012 in Garcia v. Tyson Foods, Inc., the district court approved hourly rates in a Fair Labor Standards Act (“FLSA”) case for attorneys ranging from $600 per hour, $400 per hour, and $325 per hour in Wichita.[111] In that case, the attorney who was approved for $400 per hour had approximately nine years of experience in 2012.[112] In 2016 in Koehler v. Freightquote.com, Inc., the district court approved an hourly rate of $400 per hour in an FLSA case.[113] The attorney in Koehler was experienced in employment law cases, and he had approximately nine years of experience in 2016.[114] In 2015 in Barbosa v. National Beef Packing Co., the district court approved hourly rates in an FLSA case for $425 per hour, $325 per hour, and $250 per hour.[115] The attorney approved for $425 rate had seventeen years of experience.[116]While these are FLSA cases and demand a somewhat different rate than Title VII and Title IX cases, they are persuasive to the Court on the heightened billing rate in the employment litigation context.

         iii. Defendant's Evidence of Reasonable Hourly Rate

         Defendant offers contrary evidence regarding the reasonable hourly rate for Mr. O'Laughlin and Ms. Maloney. Defendant first offers the affidavit of its counsel, Ms. Casement.[117] The Court may properly consider the rate of opposing counsel when setting reasonable hourly rates.[118] Ms. Casement was an Assistant Attorney General in the Office of the Kansas Attorney General. Ms. Casement did not provide evidence as to her skill or amount of experience. Ms. Casement did not provide evidence that she regularly practices employment litigation. Ms. Casement did not provide evidence that she practices in Kansas City, which seems unlikely given the Kansas Attorney General's Office is in Topeka. Ms. Casement attests she would charge a rate of $130 per hour as an assistant attorney general.

         The Court does not find Ms. Casement's affidavit persuasive for several reasons. First, Ms. Casement is practicing in Topeka, Kansas, which typically has different rates than Kansas City.[119] Second, Ms. Casement has presented no evidence that she has similar specialized experience in employment or civil rights litigation. She is a lawyer for the State of Kansas, and she undoubtedly has a more general practice. Third, Ms. Casement presented no evidence she has similar credentials and experience to that of Ms. Maloney and Mr. O'Laughlin. She did not state the number of years she has practiced. She did not state she had ever conducted a trial before, or had a favorable jury verdict as Ms. Maloney and Mr. O'Laughlin both presented. Fourth, Ms. Casement is an attorney for the State of Kansas rather than a private practitioner competing in the marketplace.[120] There is no indication that her rate is indicative of the private market. Thus, although she presents evidence that her rate is $130 per hour, this is not persuasive as to the rate of Ms. Maloney and Mr. O'Laughlin.

         Defendant offers the affidavit of David Cooper and Todd Thompson to contradict the affidavit of Mr. Ralston. David Cooper is a partner at Fisher, Patterson, Sayler, & Smith, LLP in Topeka, Kansas. He was admitted to practice in Kansas in 1994. Mr. Cooper has focused his practice on civil defense litigation, including employment law. He has practiced extensively in the United States District Court for the District of Kansas, including appearing in 172 federal court cases. He admits that he is retained by liability insurers to defend the insured and governmental entities, so he historically commands a lower rate because of the certainty of payment and the volume of work. He attests that in 2014, 2015, and the first quarter of 2016, he charged an hourly rate of $225, and for the remainder of 2016, he charged an hourly rate of $250. Todd Thompson is a senior attorney at Thompson, Ramsdell, Qualseth & Warner in Lawrence, Kansas. He was admitted to practice in Kansas more than thirty years ago. Mr. Thompson's practice has been focused on civil litigation services. Mr. Thompson attests that the prevailing rate in “Topeka and northeast Kansas” is $190-$270 for 15 to 25 years experience.

         The Court does not find Mr. Cooper or Mr. Thompson's affidavits probative for several reasons. First, Mr. Cooper attests to his rates in Topeka, Kansas, and Mr. Thompson attests to his rates in Lawrence and “northeast Kansas.” These rates are different than the relevant market, which is Kansas City. While Mr. Thompson states the rates relate to “northeast Kansas” and Kansas City is in northeast Kansas, it is unclear that Mr. Thompson is referring to Kansas City, Kansas and Kansas City, Missouri. Second, Mr. Cooper and Mr. Thompson do not state that they specialize in employment litigation, as Ms. Maloney and Mr. O'Laughlin have attested. Rather, they refer to rates in civil litigation generally. Third, Mr. Cooper's affidavit states that his rates are lower because he is hired by insurers. His rate is not reflective of Ms. Maloney and Mr. O'Laughlin because they took this matter on contingency with no guarantee of payment. Thus, the Court is not persuaded ...


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