The
plaintiff’s allegations -- which were largely
corroborated, uncontradicted and/or conceded at trial – was that she had been
subjected to a hostile work environment by her co-workers between 2001 and
April 2005. (Among other things, and as
detailed in the Court’s opinion, they called her foul names, locked her in a
porta-potty, and otherwise ostracized her). She repeatedly complained to her supervisor
and human resources, but no investigation was conducted, no disciplinary
actions were issued and the employer’s diversity training did not cover
name-calling. Her supervisor never
repeated her allegations to upper management or human resources. The employer defended that there had been no
illegal events in the 300 days before she filed her EEOC Charge and that some
of the misconduct had not been specifically related to her gender. The plaintiff also alleged retaliation when
she was removed from a training program in June 2005 for making mistakes during
a snap inspection in April. The first jury
rendered a verdict in favor of the employer, but the plaintiff was granted a
new trial on only the hostile work environment claim and the second jury
awarded her $7,900,000.
The Court rejected the employer’s argument that the
harassment was not gender-based because some of the incidents were not sexual
in nature (i.e., not sexual advances, physical contact or touching):
This argument fails, because it construes too narrowly the
types of conduct that can contribute to a work environment permeated with sexual
harassment. We have held that “non-sexual conduct may be illegally sex-based where
it evinces anti-female animus, and therefore could be found to have contributed
significantly to the hostile environment.”
Moreover, a jury is to
consider “the totality” of the facts and circumstances, so that evidence of the
non-sexual incidents can be considered along with the evidence of the
sexually-based incidents to “provide a basis for inferring that even the facially neutral
incidents were based on [the plaintiff’s] gender.”
The employer’s “failure to respond to known complaints
demonstrated that [it] tolerated or condoned the harassing behavior, or, at the
very least, that the company failed to take appropriate remedial action.”
The employer attempted to exclude evidence of all incidents
that took place more than 300 days before she filed her EEOC Charge and argued
that she failed to identify any sexually harassing incidents within the 300-day
limitations period. The Court disagreed.
The Supreme Court has held that a
hostile work environment that violates Title VII “occurs over a series of days or
perhaps years . . . . Such claims are based on the cumulative effect of
individual acts.” Therefore, the jury
could consider evidence of several years’ worth of harassing incidents as long
as one of the incidents took place within the 300-day period.
In addition, the Court found that she had identified
sufficiently harassing incidents within the 300 days before she filed her EEOC
Charge. In particular, there was evidence
that her co-workers continued to ostracize and isolate her within the relevant
300-day period:
It was not an abuse of discretion for the district court to find
that the clear weight of the evidence demonstrated ongoing isolation and an
atmosphere of hostility towards Waldo, and that this atmosphere continued into
2005, when Waldo participated in the Step IV class. There was testimony from
both Waldo and Cutts that Waldo’s coworkers ignored her and refused to speak
with her during her Step IV class in 2005.
. . . Barnes, one of Waldo’s instructors in 2005, further corroborated
this testimony when he stated that he reprimanded one of Waldo’s coworkers for
making comments that he did not want to work with women and that women were not
strong enough to do the job. . . . This type of conduct—ignoring and
ostracizing a coworker—if motivated by gender-based animus, can be a form of
gender-based harassment that contributes to a hostile work environment. . . . Because
there was strong evidence that Waldo continued to face hostility and isolation
in April 2005, the district court acted within its discretion by finding that the
clear weight of the evidence demonstrated that at least one incident of
harassing behavior contributing to the hostile environment occurred after March
12, 2005. Thus all of the relevant harassment could be considered.
The Court divided on the
issue of requiring the employer to pay her attorney fees. Prevailing civil rights plaintiffs are
entitled to an award of attorney fees, but the amount of those fees is within
the discretion of the court. The plaintiff’s
lead attorney fees were calculated at $400/hour as the “reasonable
hourly rate” based on the court’s assessment of the “prevailing market rate in the relevant
community’” The majority explained
that
the prevailing market rate is “that rate which lawyers of comparable skill and experience can
reasonably expect to command within the venue of the court of record.” Id. A
district court is permitted to “rely on a party’s submissions, awards in
analogous cases, state bar association guidelines,
and its own knowledge and experience in handling similar fee requests.”
“The
district court considered appropriate factors in its analysis, and its
determination of a reasonable hourly rate is not outside the range of reported
rates for highly experienced attorneys in the area.”
The
majority also concluded that the fee request should not be reduced based on the
number of claims which were reduced. The most critical factor is the “degree of
success obtained.”
In
cases when “a plaintiff has obtained excellent results, his attorney should
recover a fully compensatory fee.” Id.
at 435. Accordingly, we have explained that “a reduction in attorney fees
[awarded to a prevailing plaintiff] is to be applied only in rare and
exceptional cases where specific evidence in the record requires it.” . . . Specifically, a court should not
measure a plaintiff’s success simply by using a ratio of successful claims to claims raised. . . . This is
because when several claims arise from a common core of facts, “[m]uch of
counsel’s time will be devoted generally to the litigation as a whole, making
it difficult to divide the hours expended on a claim-by claim basis. Such a
lawsuit cannot be viewed as a series of discrete claims.”
The majority also concluded that the plaintiff’s
attorney had deserved the greater fee because -- acting as a private attorney general – he proved
the case; the second jury awarded her $7,900,000 and the amount was only
reduced as required by statute.
Although the dissent insinuates that the attorney fee award
was unreasonable because it was slightly more than twice as much as the damages
award to Waldo, see Dissent at 30, 32, “[i]n the civil rights area,
there is no requirement that the amount of an award of attorneys’ fees be
proportional to the amount of the underlying award of damages.” . . . In City of Riverside, the Supreme Court
upheld an attorney fee award that was more than seven times greater than the
damages awarded to plaintiffs. We similarly have affirmed an attorney fee award
that was more than five times the damages awarded to a plaintiff in a civil
rights case, stating that “the value of the rights vindicated goes beyond the
actual monetary award, and the amount of the actual award is not controlling.” McHenry
v. Chadwick, 896 F.2d 184, 189 (6th Cir. 1990). As the Supreme Court
explained in City of Riverside: “Congress enacted § 1988 specifically
because it found that the private market for legal services failed to provide
many victims of civil rights violations with effective access to the judicial
process. . . . In order to ensure that lawyers would be willing to represent
persons with legitimate civil rights grievances, Congress determined that it
would be necessary to compensate lawyers for all time reasonably expended on a
case.” 477 U.S. at 576, 578. Notwithstanding the dissent’s apparent displeasure
with Congress’s chosen policy, our precedents establish that an attorney fee
award in a civil rights case is not unreasonable merely because it is greater
than the damages awarded to the plaintiff.
Finally, the majority
refused to discount the fees for the first trial, where the jury ruled in favor
of the employer on all claims. ““[T]he question
of whether a party ‘prevailed’ and whether a fee award is ‘reasonable’ is not
one to parse too thinly . . . [based on] the number of trials required to reach
a result.”
The dissent objected to the reduction of only $1,000 of the
requested attorney fees, “including for all work incurred to lose the
first jury trial, all work incurred to lose six of the seven claims
(four of them state law claims) and for all work incurred to win $300,000 in
the second jury trial. One can be forgiven for thinking that Waldo’s two
attorneys, not Waldo, were the true winners. This is good work if you can get
it.”
But the acceptance of
these points in the aggregate here gives trial court discretion a bad name. I
know of no case in which an appellate court upheld all fees for the first
(losing) trial when the only reason for the second trial was the trial court’s granting
of a new trial under Civil Rule 59(a)(1)(A), which is to say that the verdict
was merely against the weight of the evidence, which is to say that the
evidence would havepermitted a defense verdict to stand. See White v. Pence,
961 F.2d 776, 780 (8th Cir. 1992). There was nothing unfair about the first
trial. Defense counsel did nothing wrong. The trial court did nothing wrong.
And the jury did nothing wrong, as the evidence would have permitted a defense
verdict to stand. All that happened was that the trial judge disagreed with the
jury. If anyone did anything wrong, it was plaintiff’s counsel in failing to
convince the jury to rule his way in the initial trial. No reduction, any
reduction, for all of the work on the first trial? That is a heavy lift. Where,
moreover, would this end? Would a second lost jury verdict and a second
successful Civil Rule 59 motion
for a second do-over permit fees as well? Some reduction was in order.
. . . .
I am prepared to hold my nose in upholding a lot of fee awards,
whether they seem too small or too large at the time. But a blanket fee award
of $684,506 for losing six of seven claims, including for all of the
work in losing the first jury trial, is not one of them.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
