Dunlap v. Spec Pro, Inc.

Filing 85

ORDER granting in part and denied in part 75 Motion for Attorney Fees. ORDERED that plaintiff TONYA DUNLAP shall be awarded $34,801.25 in attorney's fees by Judge Philip A. Brimmer on 03/18/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-02451-PAB-MJW
TONYA DUNLAP,
Plaintiff,
v.
SPEC PRO, INC., a foreign corporation,
Defendant.

ORDER

This matter is before the Court on Plaintiff’s Motion for Attorney Fees [Docket
No. 75] filed by plaintiff Tonya Dunlap.
I. BACKGROUND
On September 16, 2011, Ms. Dunlap filed this action against defendant Spec
Pro, Inc. (“Spec Pro”). Docket No. 1. Pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, Ms. Dunlap alleged (1) discrimination on the basis of sex, (2)
retaliation for participating in protected activity, and (3) reckless and wanton gender
discrimination in violation of 42 U.S.C. § 1981a. Docket No. 1 at 2-3. Ms. Dunlap
sought damages for back pay, front pay, loss of earning capacity and future incapacity,
emotional distress, loss of enjoyment of life, and punitive damages. Id. at 3. The Court
dismissed Ms. Dunlap’s retaliation claim on summary judgment, finding:
Given that Ms. Dunlap does not establish that Spec Pro treated her any
differently than other similarly situated employees, she does not show that
Spec Pro’s reason for her termination was pretextual. Instead, the
undisputed evidence establishes that she was given the full extent of her

short-term disability benefits, Spec Pro transitioned her to long-term disability
because of the weight bearing restrictions, and she did not re-apply for a
position with Spec Pro. Based on the foregoing, Ms. Dunlap fails to raise
any genuine inconsistencies, incoherencies, or contradictions with Spec
Pro’s legitimate non-discriminatory reason for termination and no reasonable
jury could conclude that Ms. Dunlap’s termination was retaliatory.
Docket No. 64 at 23 (citations omitted). On April 8-11, 2013, Ms. Dunlap’s hostile work
environment claim was tried to a jury. Docket Nos. 70-73. The jury found in favor of
Ms. Dunlap on her claim that she was subject to a hostile or abusive work environment
because of her sex based on the conduct of her co-workers. Docket No. 73-1 at 1.
However, on Ms. Dunlap’s claim that she was subject to a hostile or abusive work
environment based on the conduct of her supervisors, the jury found in favor of Spec
Pro. Id. The jury awarded Ms. Dunlap $1.00 in nominal damages and did not award
her compensatory or punitive damages. Id. at 2.
On April 26, 2013, Ms. Dunlap filed the instant motion. Docket No. 75. Pursuant
to 42 U.S.C. § 2000e-5(k), Ms. Dunlap seeks $70,661.70 in attorney’s fees. Id. at 2.
Spec Pro argues that, because the jury awarded Ms. Dunlap nominal damages, Ms.
Dunlap is not entitled to an award of attorney’s fees or, in the alternative, that Ms.
Dunlap’s award of attorney’s fees should be reduced accordingly. Docket No. 77 at 7.
II. ANALYSIS
A. Ms. Dunlap’s Failure to Prove Compensatory Damages
In actions brought under Title VII of the Civil Rights Act, “the court, in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .” 42
U.S.C. § 2000e-5(k). “Congress intended to permit the . . . award of counsel fees only
when a party has prevailed on the merits of at least some of his claims.” Hanrahan v.
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Hampton, 446 U.S. 754, 758 (1980).1 “[A] plaintiff who wins nominal damages is a
prevailing party” for purposes of awarding attorney’s fees under Tile VII. Farrar v.
Hobby, 506 U.S. 103, 112 (1992). The “‘degree of the plaintiff’s success’ does not
affect ‘eligibility for a fee award.’” Id. at 114 (quoting Tex. State Teachers Ass’n v.
Garland Ind. Sch. Dist., 489 U.S. 782, 789 (1989)). Thus, where Ms. Dunlap achieved
a judgment in her favor for nominal damages, the Court finds that Ms. Dunlap is a
prevailing party entitled to reasonable attorney’s fees.
Once plaintiff has “crossed the ‘statutory threshold’ of prevailing party status,” a
district court must ensure that an award of attorney’s fees is warranted. Tex. State
Teachers Ass’n, 489 U.S. at 789-90. The “‘technical’ nature of a nominal damages
award . . . does bear on the propriety of fees awarded.” Farrar, 506 U.S. at 114. In the
Tenth Circuit, a district court’s discretion to entirely deny attorney’s fees to a prevailing
party is narrow. Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997). However,
the prevailing party’s award request for attorney’s fees must be evaluated based upon:
“(1) the difference between the judgment recovered and the recovery sought; (2) the
significance of the legal issue on which the plaintiff prevailed; and (3) the public
purpose of the litigation.” Id. (citing Farrar, 506 U.S. at 121-22 (O’Connor, J.,
concurring)). “When a plaintiff recovers only nominal damages because of his failure to
prove an essential element of his claim for monetary relief, . . . the only reasonable fee
is usually no fee at all.” Id. at 115.

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The Supreme Court has generally recognized that “case law construing what is
a ‘reasonable’ fee applies uniformly to all” fee-shifting statutes under Title VII, e.g. §§
1988, 2000e-5(k), 7604(d). City of Burlington v. Dague, 505 U.S. 557, 562 (1992).
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The Court first turns to the “‘degree of success obtained,’” which is “‘the most
critical factor’ in determining the reasonableness of a fee award.” Farrar, 506 U.S. at
114 (quoting Hensley, 461 U.S. at 436). Where, as here, plaintiff’s claims for relief
were based upon a common set of facts and “related legal theories,” the district court
should “focus on the significance of the overall relief obtained by the plaintiff in relation
to the hours reasonably expended on the litigation.” Hensley, 461 U.S. at 435. Ms.
Dunlap’s complaint did not make a specific monetary demand, although she requested
back pay, front pay, loss of earning capacity and future incapacity, emotional distress,
loss of enjoyment of life, and punitive damages. See Docket No. 1 at 3. The dismissal
of Ms. Dunlap’s retaliation claim eliminated her request for back pay and front pay,
leaving the jury to consider whether Ms. Dunlap proved non-economic and punitive
damages. See Docket No. 64 at 23. The fact that the jury ultimately awarded only
$1.00 in nominal damages suggests that some reduction in the requested attorney’s
fees is appropriate, especially where Ms. Dunlap’s retaliation claim did not survive
summary judgment.
However, the Tenth Circuit has recognized that a lack of success in proving
damages is not dispositive where other interests are implicated. See, e.g., Phelps, 120
F.3d at 1132 (finding that, where plaintiffs prevailed on only one of four claims,
declaratory judgment in plaintiffs’ favor overturning state statute as unconstitutionally
vague “does not weigh in favor of characterizing the plaintiffs’ victory as merely
technical or de minimis”); Koopman v. Water Dist. No. 1 of Johnson Cnty., Kan, 41 F.3d
1417, 1421 (10th Cir. 1994) (reversing denial of attorney’s fees because plaintiff’s

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nominal damages award benefitted other employees by placing defendant on notice
that its termination proceedings were constitutionally inadequate). The Court finds that
this is just such a case. At trial, there was significant testimony describing the general
nature of the work environment at Spec Pro. Spec Pro’s human resources investigator
said of Ms. Dunlap’s workplace, “everyone was voluntarily participating in unwelcome
conduct or misconduct.” Docket No. 80 at 7, p. 412:20-21. The evidence presented at
trial suggested that this environment persisted for a significant period of time before
Spec Pro took corrective action. Spec Pro claims that, by failing to prevail on her claim
of supervisor sexual harassment, Ms. Dunlap did not show that Spec Pro’s
management level employees contributed to the hostile work environment. Docket No.
77 at 5-6. The jury’s verdict on Ms. Dunlap’s supervisor sexual harassment claim, while
rejecting a claim that her supervisors sexually harassed her, does not indicate that the
jury found that Spec Pro’s management level employees were unaware of the existence
of a hostile work environment. See Docket No. 73-2 at 12. Rather, by finding in Ms.
Dunlap’s favor on her claim of co-worker sexual harassment, the jury necessarily found
that management level employees knew or should have known of the hostile work
environment present at Spec Pro and failed to take prompt and appropriate corrective
action. See id. at 10. Although Spec Pro claims that the work environment was
eventually corrected, Ms. Dunlap’s victory benefits future employees by placing Spec
Pro on notice that it must maintain a workplace free from sexual harassment.
Moreover, this case was filed and tried to a jury in less than two years and, as such,
was not unnecessarily protracted in relation to the relief obtained. See Brandau v.
State of Kan., 168 F.3d 1179, 1182 (10th Cir. 1999); cf. Farrar, 506 U.S. at 116
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(O’Connor, J., concurring) (noting that 10 years of litigation and two appeals yielding
one dollar in damages was unnecessarily protracted litigation). The Court finds that this
factor is neutral.
The second factor examines the “extent to which the plaintiff[] succeeded on
[her] theory of liability.” Phelps, 120 F.3d at 1132. Although Ms. Dunlap’s retaliation
claim did not survive summary judgment, she succeeded on her hostile work
environment claim. See Brandau, 168 F.3d at 1182 (“although [plaintiff] lost her
retaliation and constructive discharge claims,” verdict in plaintiff’s favor on sexual
harassment claim was significant legal issue on which the plaintiff prevailed). Spec Pro
argues that Ms. Dunlap’s failure to prevail on her claim of supervisor sexual harassment
indicates only minimal success. Docket No. 77 at 5. Nonetheless, the jury concluded
that a hostile work environment existed at SpecPro. The Court finds that this factor
weighs in Ms. Dunlap’s favor.
The third factor “considers the public purpose served by the plaintiff[’s] success.”
Phelps, 120 F.3d at 1132. Of particular significance is whether “the judgment
vindicates important rights and deters future lawless conduct as opposed to merely
‘occupying the time and energy of counsel, court, and client.’” Id. at 1132 (quoting
Farrar, 506 U.S. at 121-22 (O’Connor, J., concurring). Ms. Dunlap presented evidence
that reporting harassing conduct to supervisors was frowned upon and often ineffective.
Docket No. 78 at 76-77, pp. 76:8-77:7. Spec Pro argues that it corrected such conduct
prior to litigation such that the jury verdict will not deter or alter future unlawful behavior.
Docket No. 77 at 6. However, although Spec Pro’s management level employees may
not have encouraged or participated in such behavior, the jury found that management
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level employees were aware, or should have been aware, of a work environment where
sexually harassing comments were commonplace and that Spec Pro failed to take
appropriate corrective action. See Docket No. 73-2 at 10. The Court finds that Ms.
Dunlap’s success on her hostile work environment claim will benefit current and future
employees by further underscoring Spec Pro’s obligation to maintain and enforce an
effective sexual harassment policy. See Brandau, 168 F.3d at 1182-83 (“Plaintiff’s
victory put [defendant] on notice that it should reform its sexual harassment policies and
that it is proceeding at its peril if it declines to do so.”). The Court finds that this factor
weighs in Ms. Dunlap’s favor.
Defendant argues that this is a case where “special circumstances would render
such an award unjust.” Phelps, 120 F.3d at 1129 (internal quotations marks omitted).
However, the Tenth Circuit has held that “the district court’s discretion to deny fees to a
prevailing plaintiff is quite narrow,” Wilson v. Stocker, 819 F.2d 943, 951 (10th Cir.
1987), and, in light of the three Phelps factors, defendant fails to show that such special
circumstances are present in this case. Thus, the Court finds that Ms. Dunlap’s victory
was not technical or de minimis and that Ms. Dunlap should be permitted an award of
reasonable attorney’s fees.
B. Lodestar Amount
The Court turns to the issue of calculating a reasonable award of attorney’s fees
given that Ms. Dunlap achieved only limited success. Although Spec Pro seeks a
reduction in Ms. Dunlap’s request for attorney’s fees, Spec Pro offers no suggestion as
to how the Court should reduce such an award. Docket No. 77 at 7. In the Tenth

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Circuit, even where a plaintiff’s fee request includes fees incurred litigating claims that
do not reach the jury, a court must first calculate the lodestar amount: “‘the total number
of hours reasonably expended multiplied by a reasonable hourly rate-and then adjust
the lodestar upward or downward to account for the particularities of the suit and its
outcome.’” Zinna v. Congrove, 680 F.3d 1236, 1239, 1242 (10th Cir. 2012) (quoting
Phelps, 120 F.3d at 1131).
Attorney Michael Waters claims that he spent a total of 256.9 hours litigating Ms.
Dunlap’s case. Docket No. 75 at 3. In determining the reasonableness of the hours
expended, a court considers several factors. First, it considers whether the fees pertain
to tasks that would ordinarily be billed to a client. See Ramos v. Lamm, 713 F.2d 546,
554 (10th Cir. 1983), overruled on other grounds by Penn. v. Del. Valley Citizens’
Council for Clean Air, 483 U.S. 711, 717 n. 4 (1987). Plaintiff must demonstrate that
her counsel used “billing judgment” in winnowing down the hours actually spent to those
reasonably expended. Praseuth v. Rubbermaid, Inc., 406 F.3d 1245, 1257 (10th Cir.
2005).2 If not, a court should take extra care to ensure that an attorney has not
included unjustified charges in his billing statement. Id. A court should also consider
whether the amount of time spent on a particular task appears reasonable in light of the
complexity of the case, the strategies pursued, and the responses necessitated by an
opponent’s maneuvering. Id. Ultimately, the Court’s goal is to fix a fee that would be
2

“In determining what is a reasonable time in which to perform a given task,” an
attorney submitting billing entries should consider the following factors: (1) the
complexity of the case; (2) the number of reasonable strategies pursued; (3) the
responses necessitated by the maneuvering of the other side; and (4) “the potential
duplication of services” caused by the presence of multiple attorneys when one would
suffice. Ramos, 713 F.2d at 554.
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equivalent to what the attorney would reasonably bill for those same services in an
open market and fees will be denied for excessive, redundant, and otherwise
unnecessary expenses. Ramos, 713 F.2d at 553. The burden is on the party
requesting fees to prove that its counsel exercised proper billing judgment. Case v.
Unified Sch. Dist. No. 233, Johnson Cnty., Kan., 157 F.3d 1243, 1250 (10th Cir. 1998)
(“Counsel for the party claiming the fees has the burden of proving hours to the district
court by submitting meticulous, contemporaneous time records that reveal, for each
lawyer for whom fees are sought, all hours for which compensation is requested and
how those hours were allotted to specific tasks.”).
Mr. Waters’ billing records raise multiple issues. First, Mr. Waters claims that his
billing records erroneously indicate that two other attorneys expended time in this case,
see Docket No. 75-2 at 11, but that all tasks listed in the records were actually
completed by him. He states that the other attorneys’ initials have not been corrected
because counsel knows the attorneys referenced in the billing documents were not
involved in the case. Docket No. 75-1 at 1. The Court accepts Mr. Waters’ explanation
of this error. Second, Mr. Waters’ billing records indicate that 0.8 hours were expended
by Kaye Reis. Docket No. 75-2. Because Mr. Waters provides no information as to
Kaye Reis’ title, identity, or qualifications, the Court will subtract the 0.8 hours billed by
Kaye Reis. Third, Mr. Waters’ records reflect a 3.0 hour charge for Jeffrey A. Garcia,
who “Attended pretrial hearing with Mike Waters (No charge).” Docket No. 75-2 at 10.
However, the 3.0 hours that Mr. Garcia spent attending the hearing were added to the
total submitted by Mr. Waters. Id. at 11. Mr. Waters does not explain whether the
addition of Mr. Garcia’s time was in error. The Court will subtract the 3.0 hours billed by
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Mr. Garcia. The Court has reviewed the remainder of Mr. Waters’ billing records and is
otherwise satisfied that, given the nature of Ms. Dunlap’s claims, Mr. Waters used
proper billing judgment in the 253.1 hours expended on Ms. Dunlap’s case.
Mr. Water’s hourly rate is $275. Mr. Waters indicates that he has over 30 years
of experience practicing law in Colorado and has tried cases in a variety of practice
areas. In order to satisfy her burden, Ms. Dunlap must produce “satisfactory evidence –
in addition to the attorney’s own affidavits – that the requested rates are in line with
those prevailing in the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.
11 (1984). Because Ms. Dunlap has not provided any additional evidence in support of
the proposed rate, the Court can adjust the rate based on its own familiarity with the
range of prevailing rates in the Denver market. See generally Guides, Ltd. v. Yarmouth
Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1079 (10th Cir. 2002) (“where a district court
does not have before it adequate evidence of prevailing market rates, the court may
use other relevant factors, including its own knowledge, to establish the rate”).
However, in this case the Court finds that Mr. Waters’ hourly rate of $275 is reasonable.
See James v. Fenske, No. 10-cv-02591-WJM-CBS, 2013 WL 656821, at *2 (D. Colo.
Feb. 22, 2013) (finding customary rate in Denver legal market for two employment law
partners to be $275 and $300 based on their experience); Lopez v. Suncor Energy
(U.S.A.) Inc., No. 11-cv-00081-LTB-BNB, 2012 WL 695143, at *2 (D. Colo. March 5,
2012) (finding reasonable rate in employment discrimination case was $364.50 for
attorney with 19 years experience and $274.50 for attorney with ten years experience).

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Having concluded that the lodestar amount in this case is $69,602.50, the Court
must now modify the award to reflect the particularities and outcome of Mr. Dunlap’s
case. Zinna, 680 F.3d at 1242.3 A court must make “qualitative comparisons among
substantive claims before adjusting the lodestar either for excellent results or limited
success.” Jane L. v. Bangerter, 61 F.3d 1505, 1511 (10th Cir. 1995). District courts
may modify an award of attorney’s fees “by simply reducing the award to account for
the limited success of the plaintiff” or “by attempting to identify specific hours that
should be eliminated.” Tex. State Teachers Ass’n, 489 U.S. at 789-90. The latter
approach carries significant difficulties in this case where Ms. Dunlap’s hostile work
environment and retaliation claims were based upon common issues of fact and law. In
situations where plaintiff’s claims for relief were based upon a common set of facts and
“related legal theories,” the district court should “focus on the significance of the overall
relief obtained by the plaintiff in relation to the hours reasonably expended on the
litigation.” Hensley, 461 U.S. at 435.
Ms. Dunlap’s two claims were based upon the same set of facts, although only
her hostile work environment claim ultimately succeeded on the issue of liability.
Distinguishing between the hours spent on Ms. Dunlap’s two claims is nearly impossible
3

The Tenth Circuit has suggested that the proper approach to analyzing a
request for attorney’s fees in this situation may be “first assess[ing] whether special
circumstances would make any award unjust . . . then fix[ing] a reasonable fee.” Barber
v. T.D. Williamson, Inc., 254 F.3d 1223, 1229-30 (10th Cir. 2001) (quoting Gudenkauf v.
Stauffer Commc’ns, Inc., 158 F.3d 1074, 1082 (10th Cir. 1998). However, the Tenth
Circuit also noted Justice O’Connor’s observation that “‘[w]hile that exception to fee
awards has often been articulated separately from the reasonableness inquiry,
sometimes it is bound up with reasonableness.’” Barber, 254 F.3d at 1230 (quoting
Farrar, 506 U.S. at 118 (O’Connor, J., concurring)). The Court finds that this is just
such a case.
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given that both claims required nearly identical fact investigation. Nonetheless, Ms.
Dunlap’s counsel expended time defending her retaliation claim on summary judgment.
Thus, because Ms. Dunlap’s retaliation claim did not survive summary judgment, the
Court finds that reducing Ms. Dunlap’s award by 15% is warranted. With respect to
reducing Ms. Dunlap’s award based upon her limited success on her hostile work
environment claim, the Court considers the three Phelps factors. Courts have
exercised broad discretion to reduce attorney’s fees awards in similar situations. See
Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 127-28 (1st Cir. 2004) (affirming 33%
reduction where plaintiffs were awarded nominal damages on claim for due process
violation); Brandau, 168 F.3d at 1183 (affirming award of $41,598.13 in attorney’s fees
where plaintiff sought more than $50,000 and recovered $1.00); Sanchez v. Matta,
2005 WL 2313621, at *7 (D.N.M. July 29, 2005) (reducing attorney’s fees by 10%
where plaintiff won nominal damages); Bell v. Bd. of Cnty. Comm’rs of Jefferson Cnty.,
2005 WL 361510, *2, *6 (D. Kan. Feb. 15, 2005) (reducing lodestar amount by 90%
where plaintiff sought $1.4 million in damages but court vacated damages award of
$90,000); Mercer v. Duke Univ., 301 F. Supp. 2d 454, 469 (M.D.N.C. 2004) (finding that
20% reduction in Title IX case was appropriate where plaintiff failed to prove
compensatory damages). Ms. Dunlap succeeded in proving that a hostile work
environment existed at Spec Pro and in placing Spec Pro on notice of its obligation to
maintain and enforce an effective sexual harassment reporting policy. However, the
degree of success obtained carries the most weight in this analysis and, although Ms.
Dunlap did not request a specific amount in damages, the Court finds that Ms. Dunlap’s

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failure to prove actual damages warrants reducing her award of attorney’s fees by an
additional 35%. Thus, after reducing the lodestar amount of $69,602.50 by a total of
50%, Ms. Dunlap is entitled to attorneys’ fees of $34,801.25.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff’s Motion for Attorney Fees [Docket No. 75] is GRANTED
in part and DENIED in part as indicated in this Order. It is further
ORDERED that plaintiff TONYA DUNLAP shall be awarded $34,801.25 in
attorney’s fees.

DATED March 18, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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