Frazier v. Gadsden, City of
MEMORANDUM OPINION AND ORDER DENYING City of Gadsden's Post-Judgment and Amended Post-Judgment Motions. Alternatively, City of Gadsden's Amended Post- Judgment Motion is TERMED as MOOT. Further, Plaintiff Michael D. Frazier's Post-Jud gment Motions are GRANTED IN PART, TERMED as MOOT IN PART, and otherwise are DENIED as set out herein. Additionally, Mr. Frazier's Notice which the Court treated as a Motion to Amend his Instatement Motion is GRANTED, and any claim to Instatement is HEREBY DISMISSED or, alternatively, is HEREBY TERMED as MOOT. Signed by Judge Virginia Emerson Hopkins on 5/13/2016. (Attachments: # 1 Doc. 108-2 (Exhibit 2), # 2 Doc. 80-4 (Exhibit E))(JLC)
2016 May-13 PM 01:16
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL D. FRAZIER,
CITY OF GADSDEN,
) Case No.: 4:13-CV-757-VEH
MEMORANDUM OPINION AND ORDER
Introduction and Procedural History
The trial of this employment lawsuit arising under Title VII began on August
24, 2015, and the jury returned a verdict in favor of Plaintiff Michael D. Frazier (“Mr.
Frazier”) on August 28, 2015. (Doc. 66); (see also Docs. 81-85 (five volumes of trial
transcript proceedings)). The jury awarded Mr. Frazier $20,000 in compensatory
damages (Doc. 66-1 at 2 ¶ 3) on his race discrimination claim against Defendant City
of Gadsden (“COG”). On August 28, 2015, the court entered a final judgment in Mr.
Frazier’s favor. (Doc. 67).
Pending before the court and briefed by the parties are the following seven
COG’s Renewed Motion for Judgment as a Matter of Law, Or
Alternatively Motion for New Trial, Or Alternatively Motion To
Alter, Amend, Or Vacate (Doc. 88) (the “Post-Judgment Motion”)
filed on September 25, 2016;
COG’s Amended Motion for Leave To File Amended Rule 50
and 59 Motions (Doc. 101) (the “Amended Post-Judgment
Motion”) filed on October 9, 2015;
Mr. Frazier’s Rule 59(e) Motion for Equitable Relief: PreJudgment Interest (Doc. 73) (the “Pre-Judgment Interest Motion”)
filed on September 3, 2015;
Mr. Frazier’s Motion for Equitable Relief: Instatement Or Front
Pay (Doc. 74) (the “Instatement Motion”) filed on September 4,
Mr. Frazier’s Motion To Strike Affidavit of Dr. Michael Morris
(Doc. 99) (the “Strike Motion”) filed on October 7, 2015;
Mr. Frazier’s Motion for Award of Attorneys’ Fees and Request
for Briefing Schedule (Doc. 69) (the “Fee Motion”) filed on
September 2, 2015; and
Mr. Frazier’s Motion for Leave To Supplement Plaintiff’s Motion
for Attorneys’ Fees (Doc. 69) and Evidentiary Submission (Doc.
78) with Interim Attorney Time Records (Doc. 108) (the
“Supplemental Fee Motion”) filed on October 9, 2015.1
After carefully considering all of the parties’ contentions,2 COG’s Post-
Mr. Frazier’s five motions are sometimes referred to collectively as “Mr. Frazier’s PostJudgment Motions.”
Additional filings related to these motions and fully considered by this court include: Docs.
89, 90, 106 (COG’s Post-Judgment Motion); Docs. 109, 121 (COG’s Amended Post-Judgment
Motion); Docs. 94, 95, 107, 128, 129 (Mr. Frazier’s Instatement Motion); Docs. 117, 95-1 (Mr.
Frazier’s Strike Motion); and Docs. 77, 78, 95-2, 95-3, 96, 105 (Mr. Frazier’s Fee Motion). Due to
the voluminous nature of parties’ post-judgment filings, the court does not attempt to address every
Judgment and Amended Post-Judgment Motions are DENIED. Alternatively, COG’s
Amended Post-Judgment Motion is TERMED as MOOT. Further, Mr. Frazier’s
Post-Judgment Motions are GRANTED IN PART, TERMED as MOOT IN PART,
and otherwise are DENIED. The court first addresses the merits of COG’s PostJudgment Motion and Amended Post-Judgement Motion.
COG’s Post-Judgment Motion and Amended Post-Judgment Motion
In its initial Post-Judgment Motion, COG contends that Mr. Frazier’s “evidence
was insufficient for its [sic] race discrimination claims to go to the jury.” (Doc. 90 at
3).3 COG limits the scope of his relief within its Post-Judgment Motion to obtaining
a “judgment as a matter of law.” (Doc. 88 at 1 ¶ 2; see also id. at 2 (“WHEREFORE,
defendant moves for said judgment.”)). COG unhelpfully omits under which rule or
rules it is seeking post-judgment relief within its Post-Judgment Motion.
The title of COG’s brief indicates that it supports COG’s “Renewed Motion for
Judgment As a Matter of Law, Or Alternatively Motion for New Trial, Or
Alternatively Motion To Alter, Amend, Or Vacate.” (Doc. 90 at 1). However, despite
purported point offered by each side and instead has limited its written analysis to only those issues
that have been adequately developed by the parties or, alternatively, that cannot go unaddressed
because the parties have omitted key pieces from or otherwise misconstrued or misrepresented the
All page references to Doc. 90 correspond with the court’s CM/ECF numbering system.
this multifaceted title, the only standard of review expressly invoked by COG is one
for deciding a motion for judgment as a matter of law. (See Doc. 90 at 3 (“The
standard to be used by the district court in deciding a motion for judgment as a matter
of law.”)). Immediately after identifying judgment as a matter of law as the applicable
standard, COG cites to Martinez v. City of Opa-Locka, 971 F.2d 708 (11th Cir. 1992),
for the proposition that a motion for judgment n.o.v. “should be granted only if the
evidence points so overwhelmingly in favor of one party that no reasonable person
could draw a contrary conclusion.” 971 F.2d at 711. Further COG’s brief, like its
Post-Judgment Motion, is devoid of any procedural road map for the court to follow
when attempting to address the relief ineffectively sought by COG.
In its Amended Post-Judgment Motion, COG mentions Rule 50 and Rule 59
(Doc. 101 at 1) and specifically requests that this court consider the “inadvertent
omission” (Doc. 101 at 2 ¶ 1) of judicial estoppel as a defense to Mr. Frazier’s
“Motion for Equitable Relief, [and] also [as part of] . . . defendant’s motions under
Rules 50 and 59.” (Doc. 101 at 1; id. at 4 ¶¶ 4, 5). Against this ambiguous backdrop,
the court endeavors to address COG’s Post-Judgment and Amended Post-Judgment
COG’s Renewed JMOL Under Rule 50
Despite the murkiness of COG’s filings in terms of the procedural rules
invoked, the court construes them to, at a minimum, include a post-judgment motion
made pursuant to Rule 50 (the “Renewed JMOL”). Rule 50 provides in pertinent part:
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of
law against the party on a claim or defense
that, under the controlling law, can be
maintained or defeated only with a favorable
finding on that issue.
(2) Motion. A motion for judgment as a matter of law may
be made at any time before the case is submitted to the
jury. The motion must specify the judgment sought and the
law and facts that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New
Trial. If the court does not grant a motion for judgment as a matter of
law made under Rule 50(a), the court is considered to have submitted
the action to the jury subject to the court’s later deciding the legal
questions raised by the motion. No later than 28 days after the entry of
judgment–or if the motion addresses a jury issue not decided by a
verdict, no later than 28 days after the jury was discharged–the movant
may file a renewed motion for judgment as a matter of law and may
include an alternative or joint request for a new trial under Rule 59. In
ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
FED. R. CIV. P. 50(a)-(b).
Within the Eleventh Circuit, a renewed motion under Rule 50(b) must be based
upon the same grounds as the original motion.
The fact that Rule 50(b) uses the word “renew[ed]” makes clear
that a Rule 50(b) motion should be decided in the same way it would
have been decided prior to the jury’s verdict, and that the jury’s
particular findings are not germane to the legal analysis. See, e.g., [Doe
v.] Celebrity Cruises, Inc., 394 F.3d [891,] 903 [(11th Cir. 2004)](“This
Court repeatedly has made clear that any renewal of a motion for
judgment as a matter of law under Rule 50(b) must be based upon the
same grounds as the original request for judgment as a matter of law
made under Rule 50(a) at the close of the evidence and prior to the case
being submitted to the jury.”); Caban-Wheeler v. Elsea, 71 F.3d 837,
842 (11th Cir. 1996) (stating that a Rule 50(b) motion “may be used to
renew consideration of issues initially raised in a pre-verdict motion
[under Rule 50(a)],” but that the court cannot consider matters not raised
in the initial motion). The jury’s findings should be excluded from the
decision-making calculus on a Rule 50(b) motion, other than to ask
whether there was sufficient evidence, as a legal matter, from which a
reasonable jury could find for the party who prevailed at trial.
Chaney v. City of Orlando, 483 F.3d 1221, 1228 (11th Cir. 2007) (emphasis added).
The Eleventh Circuit has described the application of the Rule 50 standard as
This Court reviews a Rule 50 motion de novo, applying the same
standard as the district court. Telecomm. Technical Servs. Inc. v. Rolm
Co., 388 F.3d 820, 830 (11th Cir. 2004). The motion should be denied
only if reasonable and fair-minded persons exercising impartial
judgment might reach different conclusions. Abel v. Dubberly, 210 F.3d
1334, 1337 (11th Cir. 2000) (per curiam). We consider the evidence in
the light most favorable to the non-moving party, id., but we review all
evidence in the record and “draw all reasonable inferences in favor of
the nonmoving party [without] mak[ing] credibility determinations or
weigh[ing] the evidence,” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150, 120 S. Ct. 2097, 2110, 147 L. Ed. 2d 105 (2000).
“Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not
those of a judge.” Id. (internal quotation marks omitted). When
reviewing the record, we “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Id. at 151.
Therefore, we “should give credence to the evidence favoring the
nonmovant as well as that evidence supporting the moving party that is
uncontradicted and unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.” Id. (internal quotation marks
omitted). However, “the nonmoving party must provide more than a
scintilla of evidence that there is a substantial conflict in evidence to
support a jury question.” Berman v. Orkin Exterminating Co., 160 F.3d
697, 701 (11th Cir. 1998) (internal quotation marks omitted).
Mee Industries v. Dow Chemical Co., 608 F.3d 1202, 1210-11 (11th Cir. 2010).
Before the jury got the case, COG moved for judgment as a matter of law two
separate times. (See CM/ECF minute entry dated Aug. 27, 2015). During the first
instance after Mr. Frazier rested, COG contended that the evidence was insufficient
to show that John Crane (“Chief Crane”) took into account Mr. Frazier’s race when
disqualifying him as a candidate to become a police officer. (Doc. 84 at 175-78).4
COG’s counsel primarily attacked the sufficiency of the evidence in terms of Mr.
All page references to Doc. 84 correspond with the court’s CM/ECF numbering system.
Frazier’s reliance upon the testimony of Regina May (“Captain May”) and Chief
Crane’s adverse treatment of Captain May after she cautioned him that he could not
show a preference for hiring African-American police officers over white applicants.
COG also asserted that Mr. Frazier’s evidence on back pay was speculative and
inadequate. (Doc. 84 at 178). The court then heard from Mr. Frazier in opposition,
including evidence directly attributable to Chief Crane that he was considering race
as a factor in the hiring process,5 and ruled:
Well, it’s my practice which I’m not going to deviate from, to
defer ruling on motions for judgment. And as to the motion for directed
verdict on back wages, that motion is denied.
(Doc. 84 at 181).
After the close of all the evidence, COG perfunctorily “renew[ed] [its] motion
for judgment as a matter of law under Rule 50 and base[d] it on the same grounds
alleged earlier and argued before the court earlier . . . .” (Doc. 84 at 184). The court
again reserved ruling on the sufficiency of Mr. Frazier’s race-related evidence as is
For example, Captain May testified that Chief Crane asked her “to identify who was black
and who was white” on the roster (Doc. 82 at 120) and then after reviewing that information Chief
Crane returned the list to Captain May and told her “to process the people who had checkmarks by
their names” and who were all black. (Doc. 82 at 121). Also, Mr. Frazier’s Ex. 11–Civil Service
Board meeting minutes dated February 2, 2012 (Doc. 72 at 2)–confirms that Chief Crane held a
belief that more black officers needed to be on the police force in Gadsden and indicated during his
interview that, if selected to be Chief, he would make that happen. (See, e.g., Doc. 84 at 103-04 (“I
was kind of surprised that Gadsden is 36 percent black, and our police department is only 19 percent.
That would be one of the things that I would work on.”)). All page references to Docs. 82 and 84
correspond with the court’s CM/ECF numbering system.
its customary practice. Id.
Nothing in COG’s Renewed JMOL compels the court to reconsider the triable
nature of Mr. Frazier’s race discrimination claim. Instead, and consistent with the
court’s reasoning on summary judgment entered on October 2, 2014 (Doc. 24), the
court remains persuaded that “there was sufficient evidence, as a legal matter, from
which a reasonable jury could find for [Mr. Frazier on his race claim].” Chaney, 483
F.3d at 1228.
If, at trial, the court had precluded the jury from hearing a portion of the
evidence which it found to be pivotally favorable to Mr. Frazier on summary
judgment, then COG’s Renewed JMOL might have some merit. However, the jury
heard all the evidence that this court considered to be essential when denying
summary judgment on Mr. Frazier’s race discrimination claim. Consequently, the
court sees no plausible basis for the type of relief sought by COG in its Renewed
JMOL, especially when the Rule 56 and JMOL claim sufficiency standards are
essentially the same and, as it pertains to Mr. Frazier’s race claim, COG has not
pointed to anything that is meaningfully different between the Rule 56 versus the
Rule 50 record that calls the court’s summary judgment analysis into question. See
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S. Ct. 2097,
2110, 147 L. Ed. 2d 105 (2000) (“[T]he standard for granting summary judgment
‘mirrors’ the standard for judgment as a matter of law, such that ‘the inquiry under
each is the same.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 251,
106 S. Ct. 2505, 2511, 2512, 91 L. Ed. 2d 202 (1986))); see also Anderson, 477 U.S.
at 251-52, 106 S. Ct. at 2512 (characterizing triable test under both Rules as “whether
the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law”).
Indeed, as the Eleventh Circuit has instructed lower courts, “once the district
court determines that a reasonable jury could conclude that the employer’s proffered
reasons were not the real reason for its decision, the court may not preempt the jury’s
role of determining whether to draw an inference of intentional discrimination from
the plaintiff’s prima facie case taken together with rejection of the employer’s
explanations for its action. At that point, judgment as a matter of law is unavailable.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (emphasis
Finally, to the extent that COG has attempted to insert new grounds for
dismissal into its Renewed JMOL, not previously asserted or otherwise developed
pre-verdict as part of the Rule 50(a) record, such as the purported application of
judicial estoppel,6 those arguments are beyond the procedural reach of Rule 50(b).
Chaney, 483 F.3d at 1228. Accordingly, for all these reasons, COG’s Renewed JMOL
(brought as part of its Post-Judgment and Amended Post-Judgment Motions) is
COG’s Passing Reference to Rule 59
COG has not identified under which Rule 59 subpart or subparts it seeks relief.
While the title of its brief superficially signals that COG wants a new trial, neither the
Post-Judgment Motion nor the Amended Post-Judgment Motion specifically contains
that request. Instead, both Motions call for the court to disregard the jury’s verdict
and enter judgment in COG’s favor.
This court is under no independent obligation to examine COG’s postjudgment positions and figure out for it which portion(s) of Rule 59 might arguably
apply. See Arundar v. DeKalb Cty. Sch. Dist., 620 F.2d 493, 495 (5th Cir. 1980)
(“[O]ur courts are too burdened to require the courts to do the work of counsel for the
Judicial estoppel is an affirmative defense that neither appears in COG’s answer (Doc. 8)
nor in its description of defenses listed in the pretrial order. (Doc. 26 at 5-7). Further, COG has
neither sought leave to amend the scheduling order nor otherwise demonstrated how an “inadvertent
omission” (Doc. 101 at 2 ¶ 1) on counsel’s part, constitutes good cause for permitting such a lately
asserted defense. Cf. Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (holding that
a party seeking to amend a pleading after the expiration of a scheduling order deadline “must first
demonstrate good cause under Rule 16(b) before we will consider whether amendment is proper
under Rule 15(a)”).
parties . . . .”).7
As the United States District Court for the Southern District of Alabama has
“Judges are not like pigs, hunting for truffles buried in briefs.” Smith v.
Secretary, Department of Corrections, 572 F.3d 1327, 1352 (11th Cir.
2009). An issue must be “fairly presented” in order to trigger
consideration, and a glancing reference without discussion or legal
authority does not meet that standard. Id. As the Court has previously
noted, (Doc. 110 at 2), “[t]here is no burden upon the district court to
distill every potential argument that could be made based upon the
materials before it on summary judgment.” Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).
Amazing Grace Bed & Breakfast v. Blackmun, No. 09-0298-WS-N, 2011 WL 606126,
at *3 (S.D. Ala. Feb. 11, 2011). Therefore, akin to Amazing Grace, because COG has
not “fairly presented” a legal platform for analyzing the appropriateness of granting
any relief pursuant to Rule 59, a review of its Post-Judgment Motion and Amended
Post-Judgment Motion for this purpose has not even been triggered and is DENIED.
Furthermore, to the extent that COG mistakenly thinks it has asked this court
to grant it a new trial under Rule 59(a), none of its contentions rises to the level in
which the court would be inclined to award that relief. Following a jury trial, the
district court “may, on motion, grant a new trial on all or some of the issues–and to
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
any party– . . . for any reason for which a new trial has heretofore been granted in an
action at law in federal court[.]” FED. R. CIV. P. 59(a)(1)(A). Such grounds include
“the verdict is against the weight of the evidence, that the damages are excessive, or
that, for other reasons, the trial was not fair to the party moving,” as well as
“substantial errors in admission or rejection of evidence or instructions to the jury.”
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 194, 85 L. Ed.
147 (1940); see also Weisgram v. Marley Co., 528 U.S. 440, 452 n.9, 120 S. Ct. 1011,
1020 n.9, 145 L. Ed. 2d 958 (2000) (quoting Duncan with respect to grounds
generally supporting relief in the form of a new trial).
“A judge should grant a motion for a new trial when ‘the verdict is against the
clear weight of the evidence or will result in a miscarriage of justice, even though
there may be substantial evidence which would prevent the direction of a verdict.’”
Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.
2001) (quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984)).
“Because it is critical that a judge does not merely substitute his judgment for that of
the jury, ‘new trials should not be granted on evidentiary grounds unless, at a
minimum, the verdict is against the great – not merely the greater – weight of the
evidence.’” Lipphardt, 267 F.3d at 1186 (quoting Hewitt, 732 F.2d at 1556).
Concerning appellate review, “[b]ecause motions for a new trial are committed
to the discretion of the trial court, [the Eleventh Circuit] review[s] the district court’s
rejection of the defendants’ argument only to ascertain whether there has been a clear
abuse of discretion.” Montgomery v. Noga, 168 F.3d 1282, 1295 (11th Cir. 1999)
(citing Agro Air Assocs., Inc. v. Houston Cas. Co., 128 F.3d 1452, 1455 n.5 (11th Cir.
The application of an abuse-of-discretion review recognizes the
range of possible conclusions the trial judge may reach.
By definition ... under the abuse of discretion standard of
review there will be occasions in which we affirm the
district court even though we would have gone the other
way had it been our call. That is how an abuse of discretion
standard differs from a de novo standard of review. As we
have stated previously, the abuse of discretion standard
allows “a range of choice for the district court, so long as
that choice does not constitute a clear error of judgment.”
Rasbury v. I.R.S. (In re Rasbury), 24 F.3d 159, 168 (11th Cir. 1994)
(quoting United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989)
(citing Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)));
see also Kern, 738 F.2d at 971 (“The very concept of discretion
presupposes a zone of choice within which the trial courts may go either
way.”). Thus, when employing an abuse-of-discretion standard, we must
affirm unless we find that the district court has made a clear error of
judgment, or has applied the wrong legal standard. Maiz, 253 F.3d at
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (emphasis added).
Finally, the Eleventh Circuit “ha[s] found that ‘[t]his level of deference
[afforded to district courts] is especially appropriate where a new trial is denied and
the jury’s determinations are left undisturbed.’” Noga, 168 F.3d at 1282 (quoting
Insurance Co. of N. Am. v. Valente, 933 F.2d 921, 925 (11th Cir. 1991)); see also
Valente, 933 F.2d at 923 (“This standard acknowledges the deference that is due the
district court’s ‘first-hand experience of the witnesses, their demeanor, and [the]
context of the trial.’” (quoting Rosenfield v. Wellington Leisure Products, Inc., 827
F.2d 1493, 1498 (11th Cir. 1987))).
Here, COG attempts to establish critical evidentiary deficiencies through Mr.
Frazier’s lack of qualifications to become a police officer (Doc. 90 at 7-13), his
failure to substantiate that a black applicant was hired in lieu of him (id. at 13-15),
and his failure to show race as a motivating factor in its decision not to hire him.8 (Id.
at 15-30). Unhelpfully, the authorities upon which COG relies are, for the most part,
COG also confusingly includes a section in its brief (Doc. 90 at 30-36) faulting Mr. Frazier
for failing to prove “but for Chief Crane’s alleged discriminatory action, that the plaintiff would have
been hired by City.” (Id. at 30 (emphasis added)). A plaintiff in a Title VII race discrimination case
is not required to show but-for causation and, the jury was correctly charged using the motivating
factor standard without any objection from COG. (Doc. 63 at 6-7). To the extent this argument
relates to a mixed-motive defense, this is a burden that belongs to the defendant and, at best, if
proven only limits damages that are recoverable in a Title VII discrimination case. See 42 U.S.C. §
2000e-5(g)(2)(B) (“On a claim in which an individual proves a violation under section 2000e-2(m)
of this title [i.e., a mixed-motives case] and a respondent demonstrates that the respondent would
have taken the same action in the absence of the impermissible motivating factor, the court– . . . (ii)
shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion,
or payment, described in subparagraph (A).”) (emphasis added). Here, the jury concluded that COG
had not met its burden on this defense. (See Doc. 66 at 2 ¶ 2 (checking “No” as to whether “Mr.
Frazier would have been denied employment even if the City of Gadsden had not taken Mr. Frazier’s
race into account”)). The court sees no basis for setting aside this jury determination adverse to
summary judgment decisions rather than on-point opinions grounded in Rule 59(a)’s
more exacting against the great weight of evidence measure.
Also, while COG challenges the jury’s conclusions, it does so only by
completely crediting evidence that is favorable to it while simultaneously fully
discounting the weight of positive evidence for Mr. Frazier. For example, as Mr.
Frazier points out in his opposition, the jury heard evidence that during the two-year
time period in which he should have “remained on the eligible roster several open
potions were awarded to [non-white] applicants Montgomery, Sandridge, Mostella
and Mark Anthony Clifton.” (Doc. 106 at 17-18).9 Importantly, COG ignores the
numerous credibility-driven factual determinations that the jury faced concerning
comparator evidence, pretext, and Chief Crane’s true motivations and, regardless, has
not convinced this court that the jury’s findings are against the great weight of the
Additionally and as it pertains to COG’s post-judgment prima facie attack
premised upon what it perceives to be as problems with Mr. Frazier’s ability to satisfy
McDonnell Douglas’s circumstantial evidence burden-shifting model,10 COG
All page references to Doc. 106 correspond with the court’s CM/ECF numbering system.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 807, 93 S. Ct. 1817, 1824,
1826-27, 36 L. Ed. 2d 668 (1973), holding clarified by Hazen Paper Co. v. Biggins, 507 U.S. 604,
113 S. Ct. 1701, 123 L. Ed. 2d 338 (1993) (summarizing the prima facie, rebuttal (i.e., articulating
a legitimate, non-discriminatory reason), and pretext components of a Title VII failure to rehire claim
incorrectly presupposes that a triable case of Title VII race discrimination can only
be established this way. This is not the law of the Eleventh Circuit. See Smith v.
Lockheed–Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (“[E]stablishing the
elements of the McDonnell Douglas framework is not, and never was intended to be,
the sine qua non for a plaintiff to survive a summary judgment motion in an
employment discrimination case.”); cf. also Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997) (“If a plaintiff fails to show the existence of a similarly situated
employee, summary judgment is appropriate where no other evidence of
discrimination is present.” (emphasis in original) (citing Mack v. Great Atlantic and
Pacific Tea Co., 871 F.2d 179, 182 (1st Cir. 1989))).
Instead, a plaintiff can alternatively establish a triable issue of fact through
other proof, such as actions and remarks attributable to a decisionmaker, indicating
that race impermissibly influenced the hiring process. An abundance of “other proof”
exists in this trial record. Cf. Smith, 644 F.3d at 1328 (“[T]he plaintiff’s failure to
produce a comparator does not necessarily doom the plaintiff’s case.”); id. (“A triable
issue of fact exists if the record, viewed in a light most favorable to the plaintiff,
presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination by the decisionmaker.’” (footnote omitted) (quoting
as well as the respective burdens of the parties).
Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011))). Thus, COG’s
undeveloped request for any Rule 59(a) post-judgment relief is also DENIED for
being substantively unsound.
COG’s Amended Post-Judgment Motion
As pointed out above, COG’s Amended Post-Judgment Motion specifically
requests that this court consider the “inadvertent omission” (Doc. 101 at 2 ¶ 1) of
judicial estoppel as a defense to Mr. Frazier’s “Motion for Equitable Relief, [and] also
[as part of] . . . defendant’s motions under Rules 50 and 59.” (Doc. 101 at 1); (see id.
at 2 ¶ 1 (“Defense counsel apologizes for the inadvertent omission in defendant’s
prior motion for leave.”)); (id. at 4 ¶¶ 4, 5). As explained below, this Motion is
procedurally flawed and, regardless, is substantively unavailing.
Judicial estoppel is an affirmative defense that appears neither in COG’s
answer (Doc. 8) nor in its description of defenses listed in the pretrial order. (Doc. 26
at 5-7). Further, COG has neither sought leave to amend the scheduling order nor
otherwise demonstrated how an “inadvertent omission” (Doc. 101 at 2 ¶ 1) on
counsel’s part, constitutes good cause for permitting such a lately asserted defense.
Cf. Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (holding that a
party seeking to amend a pleading after the expiration of a scheduling order deadline
“must first demonstrate good cause under Rule 16(b) before we will consider whether
amendment is proper under Rule 15(a)”). Accordingly, COG’s Amended PostJudgment Motion is DENIED as procedurally flawed.
Moreover, even when considering COG’s attempted defense of judicial
estoppel, the court is not persuaded to apply the doctrine in the manner requested by
COG. The gist of what COG states in its Amended Post-Judgment Motion is that Mr.
Frazier’s undisputed testimony from his car wreck case should preclude him from
taking an inconsistent position in this lawsuit–that he was qualified for the police
officer position. (Doc. 101 at 5 ¶ 5). As substantive case authority, COG relies upon
the Third Circuit’s non-binding decision in McNemar v. Disney Store, Inc., 91 F.3d
610 (3d Cir. 1996), abrogated as recognized by Montrose Med. Grp. Participating
Sav. Plan v. Bulger, 243 F.3d 773, 780 n.4 (3d Cir. 2001) (explaining that necessary
inquiry under judicial estoppel (that McNemar omits) is “no lesser sanction would
adequately remedy the damage done by the litigant’s misconduct”):
Under the particular facts presented here we must decide whether
the teachings of Ryan Operations G.P. v. Santiam–Midwest Lumber Co.,
81 F.3d 355 (3d Cir. 1996), may be applied in this case to invoke the
doctrine of judicial estoppel. Specifically, we must decide whether
Appellant is judicially estopped from contending that he is a “ ‘qualified
person with a disability’ ... who, with or without reasonable
accommodation, can perform the essential functions” of a job as
contemplated by the Americans With Disabilities Act, 42 U.S.C. §§
12111(8), 12112(a), in light of his representations to federal and state
government agencies that he is totally disabled and unable to work.
McNemar, 91 F.3d at 612-13.
Overlooking COG’s failure to specifically identify those portions of the trial
transcript that show these “two starkly different positions” (Doc. 101 at 5 ¶ 5), COG
invites this court to embrace a non-binding extension of the judicial estoppel doctrine
recognized by the Third Circuit in an ADA decision involving a plaintiff’s prior
inconsistent position taken before a state and federal agency without any analysis as
to why the Eleventh Circuit would or should adopt it here. Under such circumstances,
COG’s request for relief, i.e., apply the judicial estoppel doctrine to preclude Mr.
Frazier from taking the position he was qualified to be a police officer in this lawsuit
because of prior testimony he gave in a personal injury case is underdeveloped and
unpersuasive. Accordingly, COG’s Amended Post-Judgment Motion is alternatively
TERMED as MOOT.
Thus, for all these reasons, COG’s Post-Judgment and Amended PostJudgment Motions are DENIED. Alternatively, COG’s Amended Post-Judgment
Motion is TERMED as MOOT.
Mr. Frazier’s Pre-Judgment Interest Motion
Mr. Frazier’s Pre-Judgment Interest Motion seeks to amend the court’s
judgment to include an award of interest on Mr. Frazier’s back pay. As legal support
for this modification, Mr. Frazier cites to Tucker v. Hous. Auth. of Birmingham Dist.,
507 F. Supp. 2d 1240, 1283 (N.D. Ala. 2006), aff'd, 229 F. App’x 820 (11th Cir.
2007) (“Although the prevailing view is that the decision to award prejudgment
interest on back pay is discretionary, many courts apply a presumption of entitlement
to prejudgment interest on an award of back pay to a successful Title VII plaintiff.”)
(citations omitted) (emphasis added); cf. Gloria v. Valley Grain Products, Inc., 72
F.3d 497, 500 (5th Cir. 1996) (“[I]t is settled that the decision to award prejudgment
interest on a backpay award in Title VII cases rests within the sound discretion of the
The Eleventh Circuit has not yet decided whether a district court has the
discretion to make such an award. See EEOC v. Guardian Pools, Inc., 828 F.2d 1507,
1512 (11th Cir. 1987) (“In Smith, 796 F.2d at 1432-33, this court reserved ruling on
whether the decision to award prejudgment interest in a Title VII back pay case lies
within the discretion of the district court.”).11 Despite this reserved ruling, the
Eleventh Circuit has instructed district courts to use the IRS prime rates to calculate
pre-judgment interest. See Guardian Pools, 828 F.2d at 1512 (rejecting district
court’s use of traditional flat interest rate and holding that IRS prime rate is the
In Guardian Pools, “the district court adopted the magistrate’s recommendation to award
prejudgment and post-judgment interest” and the Eleventh Circuit only had to address “whether the
district court followed the law in determining the proper interest rates.” 828 F.2d at 1512.
In the absence of any opposition by COG and persuasively guided by Tucker
and Gloria, Mr. Frazier’s Pre-Judgment Interest Motion is, in the court’s exercise of
its discretion, GRANTED with leave to propose a specific calculation of that award
as part of a proposed amended final judgment order to be submitted to chambers
email within 10 days from the entry date of this order.
Mr. Frazier’s Instatement Motion
“Title VII claimants are also presumptively entitled to reinstatement under the
‘make whole’ policy.” Nord v. U.S. Steel Corp., 758 F.2d 1462, 1473 (11th Cir. 1985)
(emphasis added) (citations omitted). Initially, Mr. Frazier primarily asked for an
order of instatement12 as part of his post-judgment equitable relief and secondarily
sought front pay. (Doc. 74 at 1). However, on April 28, 2016, Mr. Frazier filed a
Notice of Material Development (Doc. 128) (the “Notice”) which reverses his
priorities and requests, instead, that “the [C]ourt award him front pay in lieu of
instatement.” (Doc. 128 at 2 ¶ 5). Mr. Frazier lists several reasons for changing his
mind, including the length of time since the jury’s verdict in his favor, Chief Crane’s
announcement of his resignation (Doc. 128-1), and the unfavorable work environment
Because this is a failure to hire case, “instatement” rather than “reinstatement” is the
that Mr. Frazier would expect to encounter if he were instated as a police officer with
The court treats this Notice as motion to amend Mr. Frazier’s Instatement
Motion and, it is GRANTED. Further, as a result of the Notice and the first part of
COG’s opposition that resists the remedy of instatement for Mr. Frazier, the parties
now are in agreement (for different reasons) that the court should not consider
instatement and, Mr. Frazier’s claim for instatement is HEREBY DISMISSED from
this action or, alternatively TERMED as MOOT. This also means that Mr. Frazier’s
Strike Motion relating to the affidavit of Dr. Michael Morris (Doc. 95-1) filed in
conjunction with COG’s challenge of Mr. Frazier’s right to instatement relief is
TERMED as MOOT.
Accordingly, the court will limit its analysis of Mr. Frazier’s Instatement
Motion to deciding how much he should be awarded in front pay as that is the only
genuinely contested issue that remains before the court. See Weaver v. Casa
Gallardo, Inc., 922 F.2d 1515, 1528 (“In addition to back pay, prevailing Title VII
plaintiffs are presumptively entitled to either reinstatement or front pay.” (citing
Nord, 758 F.2d at 1473), superseded by statute on other grounds as stated in Munoz
v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir. 2000)).
Before turning to that issue, the court must address COG’s half-hearted attempt
at convincing this court that no front pay should be awarded to Mr. Frazier (in
addition to no instatement, the equitable relief dismissed and/or rendered moot by Mr.
Frazier’s Notice). COG fully acknowledges Title VII’s presumption that a successful
plaintiff should be awarded either a job or front pay (Doc. 94 at 3).13 Nonetheless,
COG relies on the age discrimination case of Lewis v. Fed. Prison Indus., Inc., 953
F.2d 1277(11th Cir. 1992) and other non-binding ADEA decisions, to show that it
would be an abuse of discretion to allow Mr. Frazier a front pay recovery because this
is not an “egregious” case. The court is not inclined to follow COG’s interpretation
of Lewis and apply it to this Title VII case for several different reasons.
In Lewis, the plaintiff received an offer of reinstatement (which normally cuts
off back pay and front pay) and the issue facing the court was whether the plaintiff’s
rejection of that offer was reasonable such that front pay should still be equitably
available to him. Id. at 1279. Further, the Lewis court ultimately reversed the district
court for precluding the plaintiff from recovering any front pay. 953 F.2d at 1282. In
doing so, the Lewis court cautioned that “[f]ront pay remains a special remedy,
warranted only by egregious circumstances.” 953 F.2d at 1281. To the extent this
warning in Lewis can even be viewed as a holding versus merely persuasive dicta, this
court views its application as limited to those situations in which a plaintiff has
All page references to Doc. 94 correspond with the court’s CM/ECF numbering system.
rejected an employer’s offer to reinstate or instate, a crucial fact which is missing
from this record.
Additionally, as this court has previously explained in another Title VII postjudgment equitable relief decision:
The court has studied and rejects Defendant’s argument that the
line of controlling ADEA cases which apply an “egregious
circumstances” standard to the front pay determination under that
particular statute should apply equally to Title VII claims. (Doc. 56 at
3-5 (citations omitted)). Indeed, the ADEA and Title VII are not mirror
images of each other. See, e.g., Gross v. FBL Financial Services, Inc.,
129 S. Ct. 2343, 2348 (2009) (“Because Title VII is materially different
with respect to the relevant burden of persuasion, however, these
decisions do not control our construction of the ADEA.”) (emphasis
added). Further, in the absence of an Eleventh Circuit or Supreme Court
decision expressly embracing an egregious conduct component to a Title
VII front pay decision, this court declines to follow those district courts
that have disallowed front pay in a Title VII case on the basis that no
record of egregious actions on the part of an employer existed. Accord
Tucker, 507 F. Supp. 2d at 1282-83 (“Given that this is a Title VII case,
the court will apply the controlling precedent of the Eleventh Circuit in
Title VII cases and will presume that Plaintiff is ‘presumptively entitled’
to front pay without a required showing of ‘egregious circumstances.’”)
Stinson v. City of Centre, No. 4:08-CV-00955-VEH, (Doc. 58 at 12 n.5) (N.D. Ala.
Apr. 7, 2010).14
In any event, the bulk of COG’s opposition relating to front pay focuses upon
The court notes that the attorney of record for the defendant in Stinson v. City of Centre,
H. Edgar Howard, is the same lawyer who primarily represents COG here.
limiting the amount claimed by Mr. Frazier and so that is the disputed issue which
this court will address in length. (See Doc. 94 at 24 (“Plaintiff’s alternative motion
for front pay should be denied, or alternatively, should be severely limited in
duration.”) (emphasis added)).
Mr. Frazier’s Front Pay Award
As the Supreme Court has explained front pay in the context of a Title VII
Courts recognized that reinstatement was not always a viable option, and
that an award of front pay as a substitute for reinstatement in such cases
was a necessary part of the “make whole” relief mandated by Congress
and by this Court in Albemarle. See, e.g., Shore v. Federal Express
Corp., 777 F.2d 1155, 1158-1159 (C.A.6 1985) (“Front pay is . . .
simply compensation for the post-judgment effects of past
discrimination.” It is awarded “to effectuate fully the ‘make whole’
purposes of Title VII”); Brooks v. Woodline Motor Freight, Inc., 852
F.2d 1061, 1066 (C.A.8 1988) (stating that front pay was appropriate
given substantial animosity between parties where “the parties’
relationship was not likely to improve, and the nature of the business
required a high degree of mutual trust and confidence”); Fitzgerald v.
Sirloin Stockade, Inc., 624 F.2d, at 957 (upholding award of front pay
where continuing hostility existed between the parties); Cassino v.
Reichhold Chems., Inc., 817 F.2d 1338, 1347 (C.A.9 1987) (same). By
1991, virtually all of the courts of appeals had recognized that “front
pay” was a remedy authorized under § 706(g). In fact, no court of
appeals appears to have ever held to the contrary.
Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 850-51 (2001) (emphasis
added) (footnotes omitted).
The Eleventh Circuit has similarly summarized this optional equitable remedy:
As an alternative to reinstatement, the court could have ordered
front pay. James v. Stockham Valves & Fittings Co., 559 F.2d 310, 358
(5th Cir. 1977), cert. denied, 434 U.S. 1034, 98 S. Ct. 767, 54 L. Ed. 2d
781 (1978). See also Thompson v. Sawyer, 678 F.2d 257, 292 (D.C. Cir.
1982); Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945 (10th Cir.
1980). On remand, the court also should consider this option. In doing
so, the court must bear in mind that awards of front pay, like other relief
under Title VII, must be fashioned in a manner to “further the goals of
ending illegal discrimination and rectifying the harm it causes.”
Thompson v. Sawyer, 678 F.2d at 292.
Nord, 758 F.2d at 1473-74 (emphasis added) (footnotes omitted). Further, “[b]ack pay
and front pay are not independent and severable items of damages. They are each part
of the remedy the court is charged with fashioning, a remedy that, as a whole,
achieves the remedial purposes of the Act.” Weaver, 922 F.2d at 1529 (emphasis
Concerning the burden to prove and factors applicable to front pay, this court
has previously stated in the Title VII case of Warren v. Lawrence County
Commission, No. 5:08-CV-223-VEH, (Doc. 232 at 20-21) (N.D. Ala. Dec. 1, 2011)
(filed in by Mr. Frazier in this lawsuit as Doc. 74-1):
“The plaintiff bears the initial burden of providing the district
court ‘with the essential data necessary to calculate a reasonably certain
front pay award,’ including ‘the amount of the proposed award, the
length of time the plaintiff expects to work for the defendant, and the
applicable discount rate.’” Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C.
Cir. 1995) (quoting McKnight v. General Motors Corp., 973 F.2d 1366,
1372 (7th Cir. 1992)). Thereafter, “[t]he defendant remains free to
challenge the award’s amount, length, or interest rate, or to establish as
an affirmative defense that the plaintiff failed to mitigate damages.” Id.
In making a front pay determination, the court will examine
factors such as the availability of employment
opportunities, the period within which one by reasonable
efforts may be reemployed, the employee’s work and life
expectancy, and other facts that are pertinent to prospective
damage awards. The court also may consider such factors
as whether plaintiff has reasonable prospect of obtaining
comparable employment, whether the time period for the
award is relatively short, whether the plaintiff intends to
work or is physically capable of working, and whether
liquidated damages have been awarded.
Am. Jur. 2d Job Discrimination § 2641 (citing Gargano v. Diocese of
Rockville Centre, 888 F. Supp. 1274 (E.D.N.Y. 1995), aff'd, 80 F.3d 87
(2d Cir. 1996); Downes v. Volkswagen of Am., Inc., 41 F.3d 1132 (7th
Cir. 1994)); see also Davoll v. Webb, 194 F.3d 1116, 1144 (10th Cir.
1999) (“Numerous factors are relevant in assessing front pay including
work life expectancy, salary and benefits at the time of termination, any
potential increase in salary through regular promotions and cost of living
adjustment, the reasonable availability of other work opportunities, the
period within which a plaintiff may become re-employed with
reasonable efforts, and methods to discount any award to net present
value.” (emphasis added)).
(Doc. 74-1 at 20-21).
Mr. Frazier primarily seeks a front pay award of $806,725. (Doc. 74 at 14). Mr.
Frazier’s front pay figure assumes that he would have been a police officer for at least
25 years and that he would have earned $28,059 (i.e., $13.49 (in rookie pay) times
2,080 (in hours)) in straight time annually15 and another $4,210 (i.e., $20.24 (overtime
rate) times 208 (in hours)) in overtime pay annually.16 Id. This calculation omits any
cost of living increases or other adjustments in pay that might occur.17 (Doc. 74 at 14).
The proposed amount also does not factor in any employee allowances or benefits.
Finally, the front pay award is not discounted to its present value. (Id. at 15); see also
Stratton v. Dep’t for the Aging for City of New York, 132 F.3d 869, 882 (2d Cir.
1997) (“The district court did not factor future salary increases into its front pay
award; hence, it was not required to discount to present value.”).
COG contends that Mr. Frazier’s evidence to support his front pay request “is
In a footnote, Mr. Frazier mentions that he believes a 1.5% increase in pay took place after
he was disqualified to become a police officer. (Doc. 74 at 14 n.4). He further requests that “[i]f such
an increase were approved, . . . that this increase by factored in his front pay award.” Id. No evidence
has been introduced for this court to reasonably include this pay increase in fashioning Mr. Frazier's
front pay award.
In another footnote, Mr. Frazier asks for the court to approve an additional $4,210 in
overtime per year based upon the testimony of Mitch James and Regina May indicating that officers
generally have opportunities to work significant overtime beyond the customary 208 hours per year.
(Doc. 74 at 14 n.6). Factoring in this additional compensation, Mr. Frazier’s total front pay award
would equal $910,275. However, the court will not add in this component because guessing on an
amount of additional overtime offered to and accepted by Mr. Frazier on an annual basis is highly
speculative, especially with Mr. Frazier’s taking the position that he intended to “continue his current
position at the car dealership.” (Doc. 74 at 11). Maintaining his other job at Ronnie Watkins Ford
would greatly diminish the number of hours Mr. Frazier would have to do extra overtime.
In his reply brief, Mr. Frazier cites to the private sector case of Virgo v. Riviera Beach
Associates, Ltd., 30 F.3d 1350, 1364 (11th Cir. 1994), and asks the court to include a cost of living
increase of 3%. (Doc. 107 at 9). If Mr. Frazier wanted this component to be a part of his front pay
award, then he should have included it as part of his initial brief so that COG would have the
opportunity to substantively respond. In any event, the court will not make an adjustment in favor
of Mr. Frazier on such a one-sided record.
entirely too speculative to give the court a basis for an appropriate award, if any.”
(Doc. 94 at 20). More specifically, COG indicates that “[w]hile plaintiff’s calculations
of straight time net pay appear to be appropriate, the remainder of plaintiff’s bases for
calculations [is] unsupported with credible evidence.” Id. COG urges that the court
use $7,000 as an appropriate yearly value for Mr. Frazier’s front pay award based on
the jury’s back pay award of $20,000 for an approximate three-year period that
apparently factored in Mr. Frazier’s mitigation efforts. (Doc. 94 at 22). Finally, COG
complains that using testimony of three officers “as support for the proposition that
plaintiff ought to be given an award for 25 years future service . . . .  is speculation.”
(Doc. 94 at 23).
Having considered both sides’ arguments, the court accepts Mr. Frazier’s
annual calculations for straight pay and customary overtime. In particular, the court
finds these calculations to be substantially supported by evidence adduced at trial and
otherwise reasonable. Further, COG has not objected to Mr. Frazier’s annual straight
However, the court concludes that a duration of 25 years is no longer
sustainable on this record. As explained below, the court finds that the cutoff date for
Mr. Frazier’s front pay award should not be 25 years, but rather April 28, 2016–the
date on which he filed his Notice. As this Notice states:
Given the passage of time since the disqualification of Plaintiff, coupled
with Plaintiff’s belief that there are high ranking individuals within the
Gadsden Police Department and Personnel Office that would be adverse
to Plaintiff’s instatement, Plaintiff believes an order of instatement
would prove futile in the long term. Thus, Counsel for Plaintiff
respectfully requests the Court award front pay in lieu of instatement.
(Doc. 128 at 2 ¶ 5 (emphasis added)). Therefore, Mr. Frazier, has admitted through
this Notice that he no longer views employment with COG as a police officer as a
desirable long-term option for himself and he seeks an award of front pay only. This
admission directly undercuts the credibility of Mr. Frazier’s trial testimony about how
he “had always wanted to be a police officer with Gadsden Police” (Doc. 81 at 155)
and, likewise, guts the foundation for his front pay formula premised upon 25 years
of service in that position. (See also Doc. 129 at 1 ¶ 2 (COG’s Response to Notice
stating that Mr. Frazier’s “basis for his request simply makes no sense”); id. at 2 ¶ 5
(“Now, he brings to the Court the ‘material development’ of the departure of the one
official at Gadsden who would be most against his instatement, and gives this as a
reason for withdrawing his desire for instatement.”) (emphasis in original)). It also
causes a major shift in the court’s balancing of the equities when structuring
appropriate make-whole relief.
The court has not been able to find a case that closely compares with this,
apparently, somewhat unique situation. However, in this court’s view, a prevailing
plaintiff’s decision to voluntarily withdraw a pending claim for instatement post-trial
is factually analogous to a plaintiff’s rejection of an employer’s offer to instate.
Further, under either scenario (and assuming the absence of substantial discord,
antagonism, or other special circumstances) it would be inequitable under Title VII
for back pay or front pay to continue to accrue. Cf. Lewis, 953 F.2d at 1279 (“As a
general rule, ‘a Title VII claimant’s rejection of a defendant’s job offer normally ends
the defendant’s ongoing responsibility for back pay . . . .’” (quoting Ford Motor Co.
v. EEOC, 458 U.S. 219, 241, 102 S. Ct. 3057, 3070, 73 L. Ed. 2d 721 (1982))); see
also Ford, 458 U.S. at 241, 102 S. Ct. at 3070 (“[W]e hold that, absent special
circumstances, the rejection of an employer’s unconditional job offer ends the accrual
of potential backpay liability.”).
Further, common sense dictates that Title VII’s make-whole remedy will not
be served by awarding front pay beyond the date on which Mr. Frazier withdrew his
presumptive right to instatement, the preferred remedy under Title VII. See Pollard
v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 850, 121 S. Ct. 1946, 1950, 150 L.
Ed. 2d 62 (2001) (“Courts recognized that reinstatement was not always a viable
option, and that an award of front pay as a substitute for reinstatement in such cases
was a necessary part of the ‘make whole’ relief mandated by Congress and by this
Court in Albemarle.”) (emphasis added). Importantly, merely believing that persons
with COG would be adverse to Mr. Frazier’s instatement does not make that remedy
legally infeasible or transform this case into one involving special circumstances
warranting front pay. Cf. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1339
(11th Cir. 1999) (“[W]e emphasize that the presence of some hostility between
parties, which is attendant to many lawsuits, should not normally preclude a plaintiff
from receiving reinstatement.”).
Instatement and front pay are not interchangeable awards under Title VII.
Instead, front pay is a backup remedy to invoke sparingly when instatement is not
otherwise available. The Eleventh Circuit requires this court to “‘carefully articulate’
its reasons for awarding front pay in lieu of reinstatement.” Farley, 197 F.3d at 1339.
Here, the court cannot envision an abuse of discretion-proof explanation for awarding
Mr. Frazier the sizeable amount of front pay that he has requested for a period of 25
years as he no longer seeks instatement. Instead, the court will exercise its discretion
to avoid awarding Mr. Frazier a monetary windfall and only allow him to recover
front pay through April 28, 2016–the day on which he disavowed instatement on the
Accordingly, Mr. Frazier’s Instatement Motion is GRANTED IN PART and
otherwise is DENIED. Further, Mr. Frazier is HEREBY DIRECTED to confer with
COG as to the appropriate total of this revised front pay amount through April 28,
2016, and notify this court of that figure as part of his proposed amended final
judgment order to be submitted to chambers email within 10 days from the entry date
of this order.
Mr. Frazier’s Fee and Supplemental Fee Motions
“[T]he starting point in any determination for an objective estimate of the value
of a lawyer’s services is to multiply hours reasonably expended by a reasonable
hourly rate. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292,
1299 (11th Cir. 1988).18 Mr. Frazier bears the burden of “establishing entitlement and
documenting the appropriate hours and hourly rates.” Norman, 836 F.2d at 1303.
Concerning the reasonableness of a lawyer’s hourly rate, the Eleventh Circuit has
In Norman, the Eleventh Circuit acknowledged the evolving views about the continued
usefulness of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) to the
attorney fee inquiry, in light of the series of Supreme Court decisions that culminated in the
understanding that, with very limited exceptions, “the lodestar as calculated in Hensley
presumptively includes all of the twelve factors derived from the ABA Code of Professional
Responsibility DR 2–106 (1980) and adopted in Johnson . . . .” Norman, 836 F.2d at 1299; see also
Hensley v. Eckerhart, 461 U.S. 424, 434 n.9, 103 S. Ct. 1933, 1940 n.9, 76 L. Ed. 2d 40 (1983)
(“[M]any of the[ Johnson] factors usually are subsumed within the initial calculation of hours
reasonably expended at a reasonable hourly rate.”). Nonetheless, the Eleventh Circuit “still believe[s]
that at least some of the Johnson factors have utility in establishing the hourly rate. Id. The Johnson
factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the
skill requisite to perform the legal service properly; (4) the preclusion of other employment by the
attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved
and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the
“undesirability” of the case; (11) the nature and length of the professional relationship with the
client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19.
A reasonable hourly rate is the prevailing market rate in the
relevant legal community for similar services by lawyers of reasonably
comparable skills, experience, and reputation. Blum v. Stenson, 465 U.S.
at 895-96 n.11, 104 S. Ct. at 1547 n.11. Accord, Gaines v. Dougherty
County Board of Education, 775 F.2d 1565, 1571 (11th Cir. 1985). The
applicant bears the burden of producing satisfactory evidence that the
requested rate is in line with prevailing market rates. NAACP v. City of
Evergreen, 812 F.2d at 1338. Satisfactory evidence at a minimum is
more than the affidavit of the attorney performing the work. Blum, 465
U.S. at 896 n.11, 104 S. Ct. at 1547 n.11. It should also be noted that in
line with the goal of obtaining objectivity, satisfactory evidence
necessarily must speak to rates actually billed and paid in similar
lawsuits. Testimony that a given fee is reasonable is therefore
unsatisfactory evidence of market rate. See Hensley, 461 U.S. at 439
n.15, 103 S. Ct. at 1943 n.15. Evidence of rates may be adduced through
direct evidence of charges by lawyers under similar circumstances or by
opinion evidence. The weight to be given to opinion evidence of course
will be affected by the detail contained in the testimony on matters such
as similarity of skill, reputation, experience, similarity of case and client,
and breadth of the sample of which the expert has knowledge.
Norman, 836 F.2d at 1299 (emphasis added).
As set forth in Mr. Frazier’s initial Fee Motion, he is seeking $173,403.00 in
attorneys’ fees. (Doc. 78-1 at 10 ¶ 13).19 Mr. Frazier’s Supplemental Fee Motion
seeks an additional fee award for 90.5 hours expended by his lead counsel, Brett
Adair (“Mr. Adair”), since filing the original application on September 9, 2015. (Doc.
108 at 1-2). The hourly rates proposed by Mr. Frazier for approval are: $425 for Mr.
Adair; $200 for the associate, Matthew Hill (“Mr. Hill”); and $90 for the legal
All page references to Doc. 78-1 correspond with the court’s CM/ECF numbering system.
assistant, Michelle Mathews (“Ms. Mathews”). (Doc. 78-1 at 10).
On October 2, 2015, COG responded to Mr. Frazier’s Fee Motion. (Doc. 96).
COG does not dispute Mr. Frazier’s status as a prevailing party under Title VII–a
threshold inquiry under 42 U.S.C. § 2000e-5(k). See id. (“In any action or proceeding
under this subchapter, the court, in its discretion, may allow the prevailing party,
other than the Commission or the United States, a reasonable attorney’s fee (including
expert fees) as part of the costs, and the Commission and the United States shall be
liable for costs the same as a private person.”) (emphasis added). Instead, COG
acknowledges “that the cases support an award for attorney fees and costs in this
matter.” (Id. at 1). COG also “does not contest the reasonableness of the time and
expense entries as shown in the plaintiff’s evidentiary submission.”20 (Doc. 96 at 5).
COG does disagree with Mr. Frazier over the reasonableness of the hourly rates
he has proposed. Although COG does not ever explicitly indicate which hourly rate
or rates it claims to be unreasonable, based upon its response including the opposing
Mr. Frazier has not included a calculation of his expenses as part of his sealed time records
or other evidentiary submissions. (Docs. 78-1 to 78-7, 108-2). Mr. Frazier also does not anywhere
mention an expense total for which he seeks reimbursement as part of his Fee or Supplemental Fee
Motions. (Docs. 69, 108). Instead, on October 14, 2015, Mr. Frazier filed a “REVISED BILL OF
COSTS” in the total amount of $4,353.18. (Doc. 116 at 1). COG has not objected to this accounting
of costs. In the absence of an objection, it is the practice of this court for the clerk of the court to tax
costs filed pursuant to 28 U.S.C. § 1920. Consequently, this court will not undergo an analysis of
the expenses listed in Doc. 116 and the clerk should instead evaluate their appropriateness under §
1920 upon the entry of this memorandum opinion and order.
attorney affidavits, COG implicitly takes the most issue with Mr. Adair’s proposed
rate of $425. COG also argues that Mr. Frazier is not entitled to any lodestar
enhancement. (Doc. 96 at 5-7). Finally, COG asks the court to “incorporate [its]
evidence into a calculation of a reasonable hourly rate, and multiply that by plaintiff’s
total of hours expended, and . . . award a fair amount for attorney fees and costs.”
(Doc. 96 at 8).
In accordance with the attached revisions – and for the following reasons – the
court will grant Mr. Frazier $160,390 in attorneys’ fees.
Reasonableness of Hours Expended
As a general matter, courts in the Eleventh Circuit determine the reasonable
hours expended by performing “a task-by-task examination of the hours billed.”
ACLU of Ga. v. Barnes, 168 F.3d 423, 429 (11th Cir. 1999) (citing Loranger v.
Stierheim, 10 F.3d 776, 782-83 (11th Cir. 1994)). The court did so in this case. In
total, Mr. Frazier’s counsel seek to recover for approximately 517.40 hours of work
expended in litigating the case. (Doc. 78-1 at 10 ¶ 13); (Doc. 108 at 2).21 As noted
above, Mr. Frazier has the burden of establishing the reasonableness of the hours
spent on his case. Norman, 836 F.2d at 1303. Indeed, “fee counsel should [maintain]
(394 + 27.2 + 5.7) = 426.9 in hours claimed initially + 90.5 in hours claimed
supplementally = 517.4 in total number of compensable hours claimed.
records to show the time spent on the different claims, and the general subject matter
of the time expenditures ought to be set out with sufficient particularity so that the
district court can assess the time claimed for each activity.” Id. (citing Hensley, 461
U.S. at 437 n.12, 103 S. Ct. at 1941 n.12). “[W]here that party presents inadequate
documentation the court may determine a reasonable award based on its own
experience.” Villano v. City of Boynton Beach, 254 F.3d 1302, 1311 (11th Cir. 2001)
(citing Mills by Mills v. Freeman, 118 F.3d 727, 734 (11th Cir. 1997), superseded on
other grounds by Eleventh Circuit appellate rule as stated in Gray ex rel. Alexander
v. Bostic, 507 F.3d 1321, 1327 n.2 (11th Cir. 2009)).
With these principles in mind, the court concludes that Mr. Frazier’s counsel
reasonably expended a total of 473.8 hours in litigating this case. Put more
specifically, the court allots that revised total number of hours to the following
(394 + 90.5) = 484.5 in total claimed hours - (21.4 + 16.5) = 37.9 in unreasonably claimed
hours = 446.6 in reasonably claimed hours.
All 27.2 hours are reasonably claimed.
This quantity obviously represents a reduction from the submitted request.
After reviewing the documentation provided by counsel, the court found that many
of the hours expended were not reasonably included in the total. In some cases as
with the time submitted for Ms. Mathews, the court found that the duties performed
were clerical in nature and, therefore, not recoverable. See, e.g., Scelta v. Delicatessen
Support Servs., Inc., 203 F. Supp. 2d 1328, 1334 (M.D. Fla. 2002) (“The Eleventh
Circuit has iterated that the efforts of a paralegal are recoverable ‘only to the extent
that the paralegal performs work traditionally done by an attorney.’” (citing Jean v.
Nelson, 863 F.2d 759, 778 (11th Cir. 1988) (quoting Allen v. United States Steel
Corp., 665 F.2d 689, 697 (5th Cir. Unit B 1982))).25
In others, the recorded duties were not compensable as they involved tasks
falling outside of Mr. Frazier’s case in chief, including time spent on equitable relief
and fee petition issues. Further, Mr. Frazier’s counsel sometimes provided
insufficient detail for the court to discern the nature and quality of the hours
All 5.7 in claimed hours are unreasonable.
In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), the Eleventh Circuit
adopted as binding precedent all decisions of the Unit B panel of the former Fifth Circuit handed
down after September 30, 1981.
expended. Additionally, the court disallowed an hour of attorney fee time spent
returning to Birmingham from Anniston on the final day of trial. In each of these
situations, the court discounted the total amount sought by the unreasonably claimed
Reasonableness of Hourly Rates
Mr. Adair’s affidavit offered in support of his rate substantiates that he has 20
years experience as a lawyer and that he has been involved in “approximately 300400 employment discrimination and civil rights matters and claims at various stages”
over that period of time. (Doc. 78-1 at 4 ¶ 3). Mr. Adair references a Southern
Division employment case (not before the undersigned) in which he was approved at
a rate of $350 in 2010. (Doc. 78-1 at 7 ¶ 7); see also Marks v. U.S. Security
Associates, Inc., No. 2:08-CV-0459-KOB, (Doc. 326 at 5) (N.D. Ala. Sept. 28, 2010)
(approving rate “as reasonable and in accordance with the prevailing market rate in
the Northern District of Alabama for similar services by lawyers of reasonably
comparable skills, experience, and reputation”).26 Mr. Adair also justifies the hourly
rate sought here on account of the complexity of Mr. Frazier’s case, including that
Of course, this court is not bound by another judge’s fee award. Additionally, while Marks
provides some indication of Mr. Adair’s reasonable rate in 2010, other case-specific examples
discussed herein involving significantly more experienced counsel than he show why $350 is a
reasonable rate for him here.
“this was a rather unusual and difficult claim alleging a white Police Chief
discriminated against White applicants.” (Doc. 78-1 at 6 ¶ 7).
As further evidentiary support for the reasonableness of Mr. Adair’s rate, Mr.
Frazier relies upon the affidavits of Kenny Hayes (“Mr. Haynes”) (Doc. 78-2), Alicia
Haynes (“Ms. Haynes”) (Doc. 78-3), Heather Leonard (“Ms. Leonard”) (Doc. 78-4),
and John Saxon (“Mr. Saxon”). (Doc. 78-5). As their affidavits reflect, all these
attorneys have sufficient experience in the area of employment law to provide
opinions about prevailing market rates.
Mr. Haynes has been licensed to practice in the State of Alabama since 1991
(Doc. 78-2 at 2 ¶ 1)27 and has approximately four more years of experience than Mr.
Adair. Mr. Haynes states that “the prevailing market rate in the Northern District of
Alabama for plaintiff employment attorneys ranges from $250 to $600 per hour.”
(Doc. 78-2 at 4 ¶ 5). Mr. Haynes further indicates that an appropriate hourly range for
someone with the experience level of Mr. Adair “would be $400-475 per hour.” (Doc.
78-2 at 5 ¶ 11). Mr. Haynes references the same 2010 rate applied in the Southern
Division employment case involving Mr. Adair as support for Mr. Adair’s claimed
rate in this case. (Id. ¶ 12).
Ms. Haynes has been licensed to practice law in Alabama for nearly 30 years
All page references to Doc. 78-2 correspond with the court’s CM/ECF numbering system.
(Doc. 78-3 at 2 ¶ 1),28 which surpasses Mr. Adair’s level of experience by about a
decade. Ms. Haynes indicates that “[t]he prevailing market rate in Alabama currently
for plaintiff’s attorneys in employment cases, such as the current case, range[s] from
$375 to $650 per hour depending upon the skill of the litigator.” (Doc. 78-3 at 4 ¶ 5).
Ms. Haynes further states that all three rates sought by Mr. Frazier are reasonable
based upon her personal experiences and overall familiarity with the “prevailing
hourly rate of attorneys in Birmingham, Alabama.” (Doc. 78-3 at 5 ¶ 6; id. at 10 ¶ 17;
id. at 10 ¶ 18). Ms. Haynes also points to several cases in her affidavit to support her
range estimates,29 including the hourly rate of $375 awarded to her in March of 2013
in the case of Hithon v. Tyson Foods, Inc., 4:96-CV-03257-JHE, (Doc. 478 at 45)
(N.D. Ala. Mar. 19, 2013). Hithon involved a race discrimination claim for failure to
promote and, in terms of the type of claim successfully tried to a jury, is very close
to this case.
Ms. Leonard, a 1998 Alabama Bar admittee (Doc. 78-4 at 3 ¶ 1),30 offers the
same opinion as Mr. Haynes in terms of the prevailing market rate applicable to cases
arising in the Northern District of Alabama. (Id. ¶ 3). Ms. Leonard also opines that
All page references to Doc. 78-3 correspond with the court’s CM/ECF numbering system.
The court does not discuss every case cited by Ms. Haynes in her affidavit, but has
considered each one.
All page references to Doc. 78-4 correspond with the court’s CM/ECF numbering system.
the “fee petition represents a reasonable number of hours.” (Doc. 78-4 at 6 ¶ 12). Ms.
Leonard shares no illustrative cases to support her opinions. Ms. Leonard provides
a similar affidavit about reasonable attorney hours spent post-trial in support of Mr.
Frazier’s Supplemental Fee Motion. (Doc. 108-3).
Finally, Mr. Saxon states that “[t]he prevailing market rate in Birmingham for
plaintiffs’ attorneys in cases such as the Frazier case, involving race discrimination,
ranges from $250.00 to $650.00 per hour.” (Doc. 78-5 at 5 ¶ 11).31 After offering this
opinion, Mr. Saxon confirms the reasonableness of all three specific rates requested
in this case, but he does not cite to any examples of underlying awards to support this
statement. (Doc. 78-5 at 6 ¶ 13).
In 2014, Mr. Saxon requested that this court approve a $450 hourly rate for his
legal services and the undersigned, instead, awarded him at his normally hourly rate
of $385 in the Title VII pregnancy discrimination and retaliation lawsuit of Maner v.
Linkan, LLC, No. 4:12-CV-1088-VEH, (Doc. 50 at 11, 13) (N.D. Ala. June 13, 2014).
The Eleventh Circuit affirmed, stating inter alia, “the district court did not clearly err
in setting lead counsel’s rate at his normal billing rate of $385 and in the middle of
the expert’s range.” Maner v. Linkan, LLC, 602 F. App’x 489, 494 (11th Cir. 2015).
Mr. Saxon has been practicing law in Alabama since 1977, which is significantly
All page references to Doc. 78-5 correspond with the court’s CM/ECF numbering system.
longer than Mr. Adair who was licensed in October of 1995.
In challenging Mr. Adair’s hourly rate of $425, COG relies upon the affidavits
of F. Michael Haney (“Mr. Haney”) (Doc. 95-3 at 2-3 ¶ 1) and James E. Turnbach
(“Mr. Turnbach”). (Doc. 95-2); (see also Doc. 96 at 2-3 (summarizing hourly rate
information provided by affiants)). Mr. Haney has been licensed as an attorney in
Alabama since 1975 and currently practices in Gadsden, Etowah County, Alabama.
(Doc. 95-3 at 1). He has familiarity with hourly rates in Etowah and surrounding
counties due to his practice of law, his service as a Commissioner of the Alabama
State Bar, and his service as a mediator in both federal and state lawsuits. (Id. at 2).
Without citing to any specific cases to substantiate his range estimates, Mr. Haney
opines that the hourly range for lawyers who regularly deal with cases arising in the
Middle Division for the Northern District of Alabama “extends from about $150 per
hour on the low end of the range to about $225 per hour at the high end of the range.”
(Doc. 95-3 at 3 ¶ 1).
Mr. Haney also states that he is “familiar with a number of practitioners in the
Gadsden, Etowah County area who regularly bring civil actions in most state and
federal courts on behalf of plaintiffs and who are capable of and actually do undertake
cases in which plaintiffs seek to vindicate various state and federal constitutional and
statutory rights.” (Id. at 3 ¶ 2). Based upon this background and the study of this
particular case, Mr. Haney opines that Mr. Frazier’s lawsuit “does not appear . . . [to
be] so novel or complex as to preclude attorneys from the Etowah County area or of
the counties comprising the Middle Division of the Northern District from
undertaking representation of the plaintiff.” (Doc. 95-3 at 3 ¶ 2).
Mr. Turnbach has been continuously practicing law in Etowah County for 40
years and draws a distinction between fees awarded in Etowah County versus in
Birmingham, Huntsville, Montgomery, or Mobile. (Doc. 95-2 at 1). More specifically,
Mr. Turnbach indicates that the hourly rate for “comparable work” in those latter
jurisdictions “are absolutely foreign to Etowah County, Alabama.” Id. Mr. Turnbach
further opines that a range of “$200.00 per hour to $250.00 per hour . . . would not
be normal and would be payable only to attorneys in Etowah County who have vast
experience and knowledge about specific areas of the law” and that “the vast majority
of instances [in Etowah County involve] . . . the range of $135.00 to $195.00 per
hour.” Id. Concerning an hourly rate over $250.00, Mr. Turnbach additionally states
that such instances “would be rare and would be . . . well outside the normal range of
attorney fees payable in Etowah County, Alabama.” Id. Mr. Turnbach, like Mr.
Haney, offers no specific examples of awards that support his range estimates.32
Based upon the Eleventh Circuit’s decision in Norman, both affidavits offered by COG
have little or no value due to their inadequacy under the lodestar approach:
The thrust of COG’s contention is that even though Mr. Frazier retained a
Birmingham attorney to represent him, using Birmingham or Southern Division rates
is, nevertheless, unreasonable and the prevailing market rate should be tied to the
substantially lower Etowah County and Middle Division rates. Thus, both sides
geographically define the applicable legal market differently. In his reply (Doc. 105
at 4), Mr. Frazier cites to Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489 (11th Cir.
1994) and other cases, and offers evidence why Birmingham rates should apply to
this Middle Division case. (Docs. 105-2, 105-3, 105-4).
In Cullens, the Eleventh Circuit rejected the plaintiffs’ argument that the hourly
rate should be tied to the market where the lawyers primarily practiced rather than the
place where the case was filed. As the Cullens court explained:
The affidavits of Siegel and McPhillips both show that prevailing market
rates are not necessarily as high as the $125 per hour figure requested. The affidavit
of Ms. Boyd is based on court awards and negotiated settlements in other cases.
Under Johnson such information would be relevant but under the lodestar approach
it is not. For example, there is no assurance that the attorneys in those cases
possessed similar skill, experience or reputation or that the case or clients were
similar to the one at bar. Further, to the extent that fee applicants rely on an award
made in the Northern District of Alabama, there is no evidence that the prevailing
market rates in that area are the same as in Montgomery.
The affidavits offered in opposition are also deficient. Messrs. Garrett and
Novak do not attest that they have charged $65 or $70 an hour in civil rights cases.
Further, their affidavits do not show that the rates to which they attest were charged
in similar cases for similar clients by lawyers of similar skill, experience and
Norman, 836 F.2d at 1304-05 (emphasis added).
[Plaintiffs] contend the district court erred in using Macon, Georgia as
the relevant market for the hourly rate to be used in the computation of
the lodestar figure. The rate of attorney’s fees is that of the place where
the case is filed. See Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983).
The case, although transferred in 1985 to a judge of the Northern
District, based in Atlanta, was initially filed in Macon. Plaintiffs assert
Atlanta was the appropriate market because there were no lawyers in
Macon with the expertise to handle their case. The district court did not
err in focusing on whether there were attorneys in Macon with the
ability to handle plaintiffs’ individual claims rather than the proposed
class action. Nor did it err in finding that plaintiffs did not meet their
burden of showing a lack of Macon lawyers willing or able to handle
their individual claims.
Cullens, 29 F.3d at1494 (emphasis added). Here, in contrast with the plaintiffs in
Cullens, Mr. Frazier has shown a lack of lawyers practicing in Gadsden who were
willing or able to handle his case. More specifically, he has filed his affidavit (Doc.
105-2) and affidavits from two Gadsden attorneys (Docs. 105-3, 105-4)33
demonstrating the difficulty he encountered in trying to retain a local attorney to
represent him. (See, e.g., Doc. 105-3 at 2-3 ¶ 4 (“I [Randy Phillips, Jr.] recommended
that Mr. Frazier speak with an employment litigator in the Birmingham area that I
knew had adequate experience . . . . I was not aware of any attorneys in Gadsden with
expertise in employment law who would be willing to sue the City of Gadsden.”));
(Doc. 105-4 at 2-3 ¶ 4 (“I [Jay Stover] made this recommendation [to speak with a
All page references to Docs. 105-3, 105-4 correspond with the court’s CM/ECF numbering
Birmingham attorney] because I do not practice employment law and I was not aware
of any attorneys in Gadsden with sufficient expertise in employment law who would
be willing to sue the City of Gadsden.”)). Thus, consistent with Cullens and the
evidence provided by Mr. Frazier substantiating why he retained a Birmingham
attorney, this court will apply the prevailing market rates applicable to cases filed in
Birmingham or the Southern Division of the Northern District of Alabama.
Ultimately, the court has relied on its own expertise in order to reach the
appropriate hourly rate for Mr. Adair and his associate, Mr. Hill, a 2011 graduate.
However, the court also considered the experience and reputation of the attorneys, as
attested to by the affidavits and declarations, the customary fees, the evidence
provided by both sides as to the reasonable hourly rate, the degree to which opinions
have been substantiated by examples of underlining comparable cases, and the court’s
own review of previous fee awards. With these considerations in mind, the court finds
that $350 is a reasonable hourly rate for Mr. Adair in this employment lawsuit and
$150 is for Mr. Hill as they are in accordance with the prevailing Birmingham or
Southern Division range of rates for similar services by lawyers of reasonably
comparable skills, experience, and reputation.34 Multiplying the hours reasonably
The court notes that Mr. Adair included in his affidavit that he does defense work in
addition to representing plaintiffs. (Doc. 78-1 at 3 ¶ 3). As Mr. Adair did not share with the court the
hourly rate that he (or his associate) charges to his defense clients, the court had no choice but to rely
expended by the reasonable hourly rate, the court finds that $156,310 (446.6 total
hours X $350) represents the lodestar calculation for Mr. Adair’s time and $4,080
(27.2 total hours X $150) for Mr. Hill’s time. Further, the total lodestar amount equals
$160,390 (i.e., $156,310 + $4,080 = $160,390).
No Lodestar Adjustment Is Appropriate
“After determining the lodestar amount as above, the court is entitled to adjust
the amount of final fees awarded in light of the results obtained through the
litigation.” Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) (citing
Hensley, 461 U.S. at 434, 103 S. Ct. at 1939-40; Norman, 836 F.2d at 1302). “If the
court determines that the result obtained was an excellent result, then the award of
fees ‘will encompass all hours reasonably expended on the litigation, and indeed in
some cases of exceptional success an enhanced award may be justified.’” Villano v.
City of Boynton Beach, 254 F.3d 1302, 1308 (11th Cir. 2008) (quoting Hensley, 461
U.S. at 435, 103 S. Ct. at 1940). However, “there is a strong presumption that the
lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as
a ground for increasing an award above the lodestar; and a party seeking fees has the
burden of identifying a factor that the lodestar does not adequately take into account
upon its own judgment and exercise considerable discretion in arriving at the rates of $350 for Mr.
Adair and $150 for Mr. Hill. The court did not reach the reasonableness of Ms. Mathews’s claimed
rate, having struck all her claimed time as not properly awardable.
and proving with specificity that an enhanced fee is justified.” Perdue v. Kenny A. ex
rel. Winn, 559 U.S. 542, 546, 130 S. Ct. 1662, 1669, 176 L. Ed. 2d 494 (2010).
The Eleventh Circuit provided particularly meaningful guidance on lodestar
adjustments in Norman when it wrote:
If the result was partial or limited success, then the lodestar must
be reduced to an amount that is not excessive. In doing so, the court may
attempt to identify specific hours spent in unsuccessful claims or it may
simply reduce the award by some proportion. A reduction is appropriate
if the relief, however significant, is limited in comparison to the scope
of the litigation as a whole. Where all theories derive from a common
core of operative facts, the focus should be on the significance of overall
results as a function of total reasonable hours. It is improper to make the
reduction based on a simple ratio of successful issues to issues raised.
836 F.3d at 1302 (citing Hensley, 461 U.S. at 435 n.11, 103 S. Ct. at 1940 n.11). In
accordance with the Eleventh Circuit’s instructions in Norman, the court looks to the
scope of the litigation as a whole, focusing on the significance of the overall results
achieved in light of the substantial hours expended in pursuing this case. With these
considerations in mind, the court finds that neither an enhancement nor a reduction
to the lodestar amount is justified in this case.
Thus, Mr. Frazier’s Fee and Supplemental Fee Motions are GRANTED IN
PART and are otherwise DENIED. Further, Mr. Frazier is HEREBY DIRECTED
to submit to chambers email a proposed amended final judgment order that includes
a recovery for reasonable attorneys’ fees in the amount of $160,390 within 10 days
from the entry date of this order.
COG’s Post-Judgment and Amended Post-Judgment Motions are DENIED.
Alternatively, COG’s Amended Post-Judgment Motion is TERMED as MOOT. Mr.
Frazier’s Post-Judgment Motions (i.e., his Instatement Motion, his Pre-Judgment
Interest Motion, his Strike Motion, and his Fee and Supplemental Fee Motions) are
GRANTED IN PART, TERMED as MOOT IN PART, and otherwise are
DENIED. Additionally, Mr. Frazier’s Notice (which the court above treated as a
motion to amend his Instatement Motion) is GRANTED, and any claim to
instatement is HEREBY DISMISSED or, alternatively, is HEREBY TERMED as
Further, the clerk is HEREBY DIRECTED to place the court-annotated time
records attached to this order under seal. Finally, Mr. Frazier is HEREBY
DIRECTED to submit to chambers email a proposed amended final judgment order
as described herein no later than 10 days from the entry date of this order.
DONE and ORDERED this the 13th day of May, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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