Robinson v. First State Community Action Agency

Filing 90

MEMORANDUM regarding Motion for New Trial (D.I. 82 ) and Motion for Attorneys' Fees (D.I. 81 ). Signed by Judge Richard G. Andrews on 8/29/2017. (nms)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

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TAMRA N. ROBINSON,
Plaintiff,

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v.

Civil Action No. 14-1205-RGA

FIRST STATE COMMUNITY
ACTION AGENCY,
Defendant.

MEMORANDUM

Tamra Robinson, Plaintiff, filed this action against First State Community Action
Agency, Defendant, alleging violations of the Americans with Disabilities Act ("ADA").
Plaintiff asserted that: (1) Defendant regarded her as dyslexic yet failed to engage in an
interactive process to provide her with reasonable accommodations; and (2) Defendant
terminated her because she was regarded as dyslexic. On December 8, 2016, ''judgment [was]
entered in favor of [Defendant] on the ADA 'termination' claim; and ... judgment in the amount
of twenty-two thousand five hundred one dollars ($22,501) [was] entered in favor of [Plaintiff]
on the ADA 'interactive process' claim." (D.I. 73).
Before the Court is Defendant's motion for a new trial. (D.I. 82). Defendant moves
under two theories: 1) the jury was prejudiced by hearing inadmissible testimony about the Equal
Employment Opportunity Commission ("EEOC") findings in favor of Plaintiff, and 2) the jury
was instructed on the statutory cap on punitive damages in contravention of federal law. For the
reasons stated below, Defendant's motion is DENIED.

Also before the Court is Plaintiff's motion for attorneys' fees, legal expenses, and costs.
(D.I. 81). As the prevailing party, Plaintiff seeks recovery of attorneys' fees under 42 U.S.C. §
12205. (Id.). Plaintiff requests an award of a lodestar in the amount of$150,412, and for
litigation costs and expenses in the amount of $2,637.28, representing the amounts incurred
through January 3, 2017. (Id.

if 15). In Plaintiff's reply, Plaintiff requests that $17,876.72 be

added to the lodestar for attorneys' fees incurred between January 3, 2017 and January 24, 2017.
(D.I. 85 at 8). Thus, Plaintiff's total request is attorneys' fees of $168,288.72 and costs of
$2,637.28. (Id.). For the reasons set forth below, Plaintiff's motion is GRANTED in part and

DENIED in part.
DEFENDANT'S MOTION FOR NEW TRIAL
I.

STAND ARD OF REVIEW
Federal Rule of Civil Procedure 59(a)(l)(A) provides, in pertinent part: "The court may,

on motion, grant a new trial on all or some of the issues-and to any party- ... after a jury trial,
for any reason for which a new trial has heretofore been granted in an action at law in federal
court ...." Among the most common reasons for granting a new trial are: (1) the jury's verdict
is against the clear weight of the evidence, and a new trial must be granted to prevent a
miscarriage of justice; (2) newly discovered evidence exists that would likely alter the outcome
of the trial; (3) improper conduct by an attorney or the court unfairly influenced the verdict; or
(4) the jury's verdict was facially inconsistent. Zarow-Smith v. NJ Transit Rail Operations, Inc.,
953 F. Supp. 581, 584-85 (D.N.J. 1997).
The decision to grant or deny a new trial is committed to the sound discretion of the
district court. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980); Ole.fins Trading, Inc.
v. Han Yang Chem. Corp., 9 F.3d 282, 289 (3d Cir. 1993). Although the standard for granting a
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new trial is less rigorous than the standard for granting judgment as a matter of law-in that the
Court need not view the evidence in the light most favorable to the verdict winner-a new trial
should only be granted where "a miscarriage of justice would result if the verdict were to stand,"
the verdict "cries out to be overturned," or where the verdict "shocks [the] conscience."

Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1352-53 (3d Cir. 1991).

II.

THE EEOC TESTIMONY
In Defendant's motion for a new trial, Defendant contends that Defendant was prejudiced

by Plaintiffs testimony that the EEOC found in her favor. (DJ. 82). Defendant also argues that
Plaintiffs counsel intentionally elicited the statement from Plaintiff. (DJ. 86 if 1).
On the first day of the trial, Plaintiff testified that she filed a complaint with the EEOC
and that the EEOC ruled in her favor. (DJ. 87 at 3).
Q. After you were terminated, what did you do next?
A. I filed a Complaint with the EEOC, the Equal Employment Opportunity
Commission and filed for unemployment.
Q. The EEOC, to your understanding, what is that they do?
A. They, I guess, help support those who feel like they were discriminated against
with regard to a disability.
Q. Why did you go to them?
A. To get backing in regards to the evaluation and me doing -- show them the
evaluation was sufficient enough for a defense.
Q. What happened next?
A. The EEOC ruled in my favor.

(Id.) Defendant objected, and I called counsel to sidebar. (Id.). Defendant requested a mistrial,
which I denied. (Id. at 4). I told the parties trial was going to move forward, but I asked
Defendant's counsel ifthere was something else she would like me to do. (Id. at 6). Defense
counsel made no suggestions in response. I struck the question and answer and instructed the
jurors to disregard what they had heard and to not rely on it for anything. (Id. at 8).

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Members of the jury, you may recall at the beginning of the trial I said I might
have to strike some testimony and tell you to disregard what you heard. The last
question and answer, I am striking that testimony, and you have to disregard what
you heard. You cannot rely on it for anything. You need to put it out of your
mind.
(Id.). After my instruction, there was no further discussion of the EEOC throughout the trial.

I am not granting Defendant's request for a new trial for two reasons. First, the
instruction I gave was sufficient to alleviate any prejudice to Defendant. The Supreme Court held
that a district court should "presume that a jury will follow an instruction to disregard
inadmissible evidence inadvertently presented to it, unless there is an 'overwhelming probability'
that the jury will be unable to follow the court's instructions, and a strong likelihood that the
effect of the evidence would be 'devastating' to the defendant." Greer v. Miller, 483 U.S. 756,
766 n. 8 (1987). I promptly struck the testimony. My instruction was not objected to. The
testimony itself was not detailed and not even all that clear what Plaintiff was saying the EEOC
ruled on in her favor. The jury's verdict was split, showing individual analysis of the two
asserted claims. There is no reason to believe that the EEOC testimony prejudiced the jury, and
I do not believe that it had any effect on the verdict.
Second, I do not find that Plaintiff's counsel intentionally elicited the testimony from
Plai~tiff.

When I asked Plaintiff's counsel whether he had expected Plaintiff's testimony, his

responses were not altogether clear. I would summarize my understanding of his explanation to
be that he was not shocked by the response but he was trying to demonstrate that the EEOC did
not work out and that is why Plaintiff had to file a lawsuit. (D.I. 87 at 5-6). After reviewing
Plaintiffs counsel's line of questioning leading to the EEOC findings statement, and his
responses to my inquiry during the sidebar, I find that the EEOC testimony was inadvertently

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presented to the jury. Since the jury was not prejudiced, and the EEOC testimony was
inadvertent, a new trial is not warranted.

III.

THE STATUTORY DAMAGES CAP
Defendant argues that I should grant a new trial because the jury was instructed on the

statutory limitations of $50,000 for punitive damages. That was an error. Under 42 U.S.C. §
1981 a( c)(2), "If a complaining party seeks compensatory or punitive damages under this section
... the court shall not inform the jury of the limitations." Defendant, however, did not make any
objection to the instruction on the record, despite multiple opportunities to do so.
"A party who objects to an instruction or the failure to give an instruction must do so on
the record, stating distinctly the matter objected to and the grounds for the objection." Fed. R.
Civ. P. 51(c)(l). Further, a "party may assign as error: an error in an instruction actually given,
[only] ifthat party properly objected." Fed. R. Civ. P. 51(d)(l).
During a conference, I drew the parties' attentions to the inclusion of the damages cap in
the proposed verdict form and asked for their input on adding an instruction about the cap. (D.I.
88 at 3). Neither Plaintiff nor Defendant objected. (Id.). Instead, both parties agreed that the
instruction should be included. (Id.). During the charging conference, I again asked the parties if
they objected to any of the proposed jury instructions, which included an instruction on the
damages cap. (D.I. 89 at 3-21). Defendant raised six objections, but none pertained to the
damages cap. (Id.). After Defendant's counsel raised the objections, she stated, "And I believe
that is all I had for the final version of the jury instructions." (Id. at 18). I read the jury
instruction to the jury as revised and consented to by both parties. The jury then retired and went
to the jury room for deliberation.
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Defendant did not object to the instruction on the damages cap nor its inclusion in the
verdict form. Thus, the instruction was not reversible error. See McAdam v. Dean Witter
Reynolds, Inc., 896 F.2d 750 (3d Cir. 1990) (erroneous punitive damages instruction not plain
error); Trent v. Atlantic City Elec. Co., 334 F.2d 847, 859 (3d Cir. 1964) (noting that reviewing
errors in jury instructions which were not objected to at trial should be exercised "to prevent only
what is deemed a miscarriage of justice").
Further, any error was harmless. It is certainly open to debate whether telling the jury that
the maximum amount of punitive damages is $50,000 is worse for Defendant than leaving the
maximum amount unstated. I do not think it all likely that had I not instructed on the cap, the
jury would have awarded less. Having not raised the objection during trial, Defendant is barred
from raising this objection now.
Since the erroneous testimony was stricken with a curative instruction, the erroneous jury
instruction was not objected to, and it did not harm Defendant, there is no reason to grant a new
trial. Thus, Defendant's motion for new trial is DENIED.

PLAINTIFF'S MOTION FOR ATTORNEY'S FEES
IV.

STANDARD OF REVIEW
Under the fee-shifting provision of the ADA, a district court, "in its discretion, may allow

the prevailing party, other than the United States, a reasonable attorney's fee, including litigation
expenses, and costs." 42 U.S.C. § 12205. Since Plaintiff prevailed on her interactive process
claim, she is a prevailing party entitled to reasonable attorney's fees. A reasonable fee "is one
that is adequate to attract competent counsel, but ... [that does] not produce windfalls to
attorneys." Blum v. Stenson, 465 U.S. 886, 897 (1984). In calculating the amount ofreasonable
attorney's fees, "[t]he most useful starting point ... is the number of hours reasonably expended
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on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). The result ofthis calculation is called the lodestar. Rode v. Dellarciprete, 892 F.2d 1177,
1183 (3d Cir. 1990).
A court determines a reasonable hourly rate by reference to the prevailing market rates in
the community and the evidence submitted "supporting the hours worked and rates claimed" to a
court. Hensley, 461 U.S. at 433. "The prevailing party bears the burden of establishing by way
of satisfactory evidence" and the "[attorneys'] own affidavits, that the hourly rates meet this
[community rate]." Washington v. Phi/a. Cty. Ct. ofC.P., 89 F.3d 1031, 1035 (3d Cir. 1996).
With respect to the number of hours expended, the prevailing party must establish that those
hours were "reasonably expended." Hensley, 461 U.S. at 434. "The district court ... should
exclude from [the lodestar] calculation hours that were not reasonably expended." Id. The court
also may exclude from the lodestar calculation hours "spent litigating on claims on which the
party did not succeed and that were distinct in all respects from claims on which the party did
succeed." Rode, 892 F.2d at 1183.
"After determining the [reasonable rate and] number of hours reasonably expended," the
court "multiplies that rate by the reasonable hours expended to obtain the lodestar." Id. "The
lodestar is presumed to be the reasonable fee." Id. "The court can adjust the lodestar downward
ifthe lodestar is not reasonable in light of the results obtained." Id. This downward adjustment
"accounts for time spent litigating wholly or partially unsuccessful claims that are related to the
litigation of successful claims." Id. "The district court cannot decrease a fee award based on
factors not raised at all by the adverse party." Id. With these standards in mind, I turn to
Plaintiffs request.

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V.

LODESTAR
To support the fees request, Plaintiff submitted three affidavits from local attorneys,

practicing in the field of plaintiff-side employment law. (D.I. 81 at Ex. A-C). Plaintiff also
submitted a twenty-two page itemized record detailing the date work was performed, the
individual who performed it, a description of the work, the number of hours spent, and the
amount charged. (Id. at Ex. F). Defendant contests the reasonableness of the hourly rates,
contests the reasonableness of the time spent on litigation, contests the adequacy of the
documentation, and requests various adjustments to the lodestar. (D.1. 85). I will address each of

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Defendant's challenges in turn.

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A. HOURLYRATES
Defendant argues Plaintiff's attorneys' hourly rates of $410 should be reduced.
Defendant points to the $350 hourly rate awarded in Burris v. Richards Paving. 472 F. Supp. 2d
615 (D. Del. 2007). While that may have been reasonable for that case, which was a decade ago,
the standard is, "The prevailing party bears the burden of establishing by way of satisfactory
evidence ... that the hourly rates meet this [community rate]." Washington 89 F.3d at 1035.

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Plaintiff provided the Court with three affidavits from local attorneys in support of the
reasonableness of the hourly rates. (D.I. 81 at Ex. A-C). Plaintiff has established that the
requested rates here are reasonable. Thus, no adjustment will be made to the hourly rates.

B. TIME SPENT ON LITIGATION
Defendant argues that "the case was overstaffed with two attorneys expending 352.3
hours," and that "the issues in this case were not unusually complex, and the trial was not unduly
long or burdensome." (D .I. 83

iMJ 18-19).

Defendant requests that I "find that the time expended

throughout the litigation was [excessive] and not award the requested prevailing rate for both
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attorneys." (Id.

if 18).

Defendant "assert[ s] that the [trial preparation and presentation] fees

should be reduced by half." (Id.

if 19).

The use of two attorneys during trial is not excessive, and no adjustment will be made to
the lodestar on the basis of the purported overstaffing. Contrast Taylor v. USF-Red Star Express,

Inc., 2005 WL 555371 at *3 (E.D. Pa. Mar. 8, 2005) (reducing the trial billing hours in an ADA
case because the plaintiff used three senior attorneys at trial "when one or two would have
sufficed."). Trials require a greater commitment of resources. I also note that most of the
pretrial work was done with one attorney.

C. DOCUMENTATION
Defendant contests certain entries as being "insufficient to support a fee award."
Although a motion for attorney's fees should have "some fairly definite information as to the
hours," it is only required to be "specific enough to allow the district court to determine if the
hours claimed are unreasonable for the work performed." Rode, 892 F.2d at 1190. Although
some of Plaintiff's entries are not extremely detailed, all of Plaintiffs entries are specific enough
for the Court to understand the reasonableness of the work performed. Thus, no adjustment will
be made to the entries.
Plaintiffs Exhibit F, the twenty-two page itemized record detailing the attorneys' fees, is
accepted as adequate documentation for a fee award.
The starting point-the lodestar-is $168,288.72. Next, I will address Defendant's
request for adjustments to the lodestar.
VI.

ADJUSTMENTS TO THE LODESTAR
In Defendant's answer (D.I. 83), Defendant requests several adjustments to the lodestar.

Defendant argues I should reduce the lodestar for any post-trial charges, for secretarial work
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performed at paralegal hourly rates, for travel billed at full hourly rates, for issues caused and
prolonged by Plaintiff, for costs incurred by the change of Plaintiff's theory of the case, for costs
relating to Dr. Parker's deposition, and for Plaintiffs unsuccessful termination claim. (Id.). I
will examine each argument Defendant raises.

A. POST-TRIAL CHARGES
Defendant "contests [post-trial] charges relating to the preparation of the Motion for
[Attorneys'] Fees." (D.I. 83 if 16).
The Third Circuit has held "the time expended by attorneys in obtaining a reasonable fee
is justifiably included in the attorneys' fee application, and in the court's fee award." Prandini v.
National Tea Co., 585 F.2d 47, 53 (3d Cir. 1978). Plaintiffs post-trial charges spent in

preparing the motion for attorneys' fees and replying to Defendant's answer are compensable.
No adjustment will be made to the lodestar just because it includes Plaintiffs post-trial fees.

B. SECRETARIAL WORK
Defendant argues that the "hours of secretarial work" performed by paralegals required
no "specialized legal training" and requests a reduction in the lodestar equivalent to the
difference had the hours been performed by a secretary. (D.I. 83 if 17). While paralegal work
can be included in a fees award, "purely clerical or secretarial tasks should not be billed at a
paralegal rate, regardless of who performs them." Missouri, 491 U.S. 274, 288 n. 10 (1989). The
tasks described by Defendant as "hours of secretarial work" are not "purely clerical or secretarial
tasks" because e-filing, retrieving pleadings from the docket, and calling a court reporter or
clients are not purely secretarial. No adjustment will be made to Plaintiffs hours based on the
theory that a secretary should have performed the work.

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C. TRAVEL
Defendant argues that I should reduce Plaintiffs fees for travel time because Plaintiff
charged "the full hourly fee for travel to and from depositions located within two hours of the
court of jurisdiction." (D.I. 83 ii 21). "[M]atters of this sort are within the discretion" of the
Court. Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991) (upholding the district court's decision
to award compensation for travel time at the regular hourly rate). Defendant, not Plaintiff, chose
Georgetown, Delaware as the location of the depositions. Since Plaintiff's travel time could have
been avoided by Defendant, no adjustment will be made to Plaintiffs travel time billing.

D. ISSUES CAUSED AND PROLONGED BY PLAINTIFF
Defendant requested residential, employment, and educational records. Plaintiff refused
to provide that information. (D.I. 83 ii 22). Defendant filed a motion to compel (D.I. 25) which
Plaintiff answered (D.I. 28), but,"[ o ]n the same day, Plaintiff provided the information, and
Defendant subsequently withdrew the motion." (Id.). Had Plaintiff turned over the residential,
employment, and educational records instead of billing for an answer and only then turning over
the information, the costs associated with this motion to compel could have been avoided. Since
the costs could and should have been avoided by Plaintiff, the lodestar will be reduced with
regards to the costs expended on the motion to compel. The lodestar is reduced by $2,270.00 to
$166,018.72.

E. CHANGE OF PLAINTIFF'S THEORY OF THE CASE
Defendant argues for a reduction for the "belated change in Plaintiffs theory of the
case." (D.I. 83 ii 23). Defendant argues that early in the case, "Plaintiff asserted that she was
dyslexic," but "[l]ater in the litigation, Plaintiff asserted that she was 'regarded as' disabled."

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(Id.). Defendant filed a motion for summary judgment in anticipation that Plaintiff's only theory

was that she was dyslexic but did not anticipate the "regarded as disabled" theory.
Defendant did not indicate, in any document, when Plaintiff supposedly changed her
theory of the case. There is no evidence in the record (at least that has been called to my
attention), cf Fed. R. Civ. P. 56(c)(3) & (e)(2) (putting the burden on the parties to point to the
record that supports a party's position), that Plaintiff misled Defendant on her theory of the case.
Plaintiff merely alleged "discrimination against [her] because of [her] disability in
violation with the [ADA]." (D.I. 2 at 7). The term "disability" as used in 42 U.S.C. § 12101 has
three meanings: (1) a physical or mental impairment that substantially limits one or more of the
major life activities of such individual; (2) a record of such an impairment; or (3) being regarded
as having such an impairment. Thus, simply because Plaintiff states she has a disability does not
mean that she is not arguing that she is regarded as having a disability.
Plaintiffs prose complaint alleged facts that supported a "regarded as" theory. She
checked the disability box, and also wrote that she had "informed [her supervisor] that I had a
disability." (Id. at 7 & 9). Defendant might have anticipated all three meanings of "disability"
under§ 12101 as theories of the case. Defendant might have pinned Plaintiff down as to which
theories she was pursuing, and which not. I do not see that Defendant did so. Therefore, the
costs associated with replying to Defendant's summary judgment motion were reasonably
expended. No adjustment will be made to the lodestar for hours and costs arising from the
motion for summary judgment.

F. DR. PARKER'S DEPOSITION
Defendant argues I should downwardly adjust the lodestar by $2,050 for costs incurred
with Dr. Parker's deposition. (D.I. 83 iMf 23-24). Dr. Parker produced a report that was a central
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exhibit at trial for the "regarded as" theory. (Id.

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23). Defendant noticed and took the deposition

of Dr. Parker (D.I. 38, 46-1); however, Dr. Parker ultimately did not testify at trial, and her
deposition was not offered in support of the "regarded as" theory. Since Defendant took Dr.
Parker's deposition, and Plaintiff necessarily had to take part in it, no adjustment will be made to
the lodestar for time spent on Dr. Parker's deposition.

G. PLAINTIFF'S UNSUCCESSFUL CLAIM
Defendant argues that I should award an amount that is "commensurate with the limited
success attained by [Plaintiff] and the type of claim pursued." (D.I. 83

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26). Plaintiff brought an

ADA interactive process claim and an ADA termination claim against Defendant, but only
prevailed on the ADA interactive process claim. "If ... a plaintiff has achieved only partial or
limited success, the product of hours reasonably expended on the litigation as a whole times a
reasonable hourly rate may be an excessive amount." Hensley, 461 U.S. at 436. "There is no
precise rule or formula for making these determinations. The district court may attempt to
identify specific hours that should be eliminated, or it may simply reduce the award to account
for the limited success. The court necessarily has discretion in making this equitable judgment."
Id. at 436-37. In Hensley, the Supreme Court rejected the use of "a mathematical approach
comparing the total number of issues in the case with those actually prevailed upon. [Because
such] a ratio provides little aid in determining what is a reasonable fee in light of all the relevant
factors." Id. at 435 n. 11.
Plaintiff had two claims. She only prevailed on one of them- the ADA interactive
process claim. The jury_ awarded $1 in nominal damages and $22,500 in punitive damages. This
is a limited success "in comparison to the scope of the litigation as a whole." Id. at 440. Plaintiff
got nothing for being terminated. That was her lead claim. She sought $34,000 for it. (D.I. 60 at
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14). She did not prevail on it. Recognizing Plaintiffs success at trial was only partial, but also
recognizing the intertwined nature of the successful and unsuccessful claims, I think it is
appropriate to adjust the lodestar of$166,018.72 by reducing it by 20%. The awarded adjusted
lodestar amount is $132,814.98.

VIL

LITIGATION COSTS

Plaintiff submitted an itemized record detailing the date the litigation expense was
incurred, a description of each expense, and the amount for each expense. (D.I. 81 Ex. F).
Plaintiff requests reimbursement of litigation costs in the amount of $2,637.28. (Id.

ii 9).

With regards to litigation costs, Defendant only contests the costs of Dr. Parker's
deposition transcript, which is $400.20, for the same reasons that the hours expended on Dr.
Parker's deposition were unreasonably expended. (D.I. 83 ii 27). Since Plaintiff established that
the hours spent on Dr. Parker's deposition were necessary, Dr. Parker's deposition transcript was
also necessary. No expense regarding Dr. Parker's deposition transcript shall be deducted from
the litigation costs. The awarded litigation costs are $2,637.28.

VIII.

CONCLUSION

For the aforementioned reasons, Defendant's motion for new trial (D.I. 82) is DENIED,
and Plaintiff's motion for attorneys' fees (D.I. 81) is GRANTED in part and DENIED in part.
The total amount awarded is $135,452.26.
A separate order will be entered.

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