Marshall v. Tidal Wave Response, LLC et al
Filing
51
OPINION AND ORDER GRANTING 44 Motion for Equitable Relief and 50 Motion for Attorney Fees. Marshall is awarded $33,713.23 in front pay, $1,981.29 in prejudgment interest, $165,007.50 in attorneys fees, and $3,371.10 in costs. Signed by Judge Steven D. Grimberg on 3/26/2024. c:Financial Office(tas)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TIPHONY MARSHALL,
Plaintiff,
v.
TIDAL WAVE RESPONSE, LLC, and JOHN
MYERS,
Defendants.
Civil Action No.
1:21-cv-05186-SDG
OPINION AND ORDER
This matter is before the Court on Plaintiff Tiphony Marshall’s post-verdict
motions for equitable relief [ECF 44] and attorneys’ fees and costs [ECF 50]. For
the following reasons, Marshall’s motions are GRANTED.
On November 2, 2023, a jury returned a verdict of $3,470,393.82 in favor of
Marshall against Defendants Tidal Wave Response, LLC and John Myers, under
Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, for race and sex
discrimination, racial and sexual harassment, and retaliation.1 Marshall—who,
having secured an “enforceable judgment on the merits,” is a “prevailing party”
under both Title VII and § 1981, CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S. 419,
422 (2016)—now asks for equitable relief in the form of front pay and prejudgment
1
ECF 43. The jury trial was only for damages, as Tidal Wave’s and Myers’s
liability had already been determined by the Court’s order granting Marshall’s
motion for default judgment. ECF 22.
interest,2 and for attorneys’ fees and taxable costs.3 The Court addresses her
requests in turn.
First, the equitable relief. Marshall’s request would be routine but for a legal
quirk: Tidal Wave and Myers are responsible for the same discriminatory conduct;
yet Tidal Wave is liable to Marshall under both § 1981 and Title VII, whereas Myers
is liable to Marshall under only § 1981.4 The discrepancy arises because Tidal Wave
(Marshall’s former employer) is legally distinct from Myers (Tidal Wave’s
supervisory employee whose discriminatory conduct was imputed to Tidal
Wave), see Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991), and because
Title VII imposes liability on employers only, whereas § 1981 imposes liability on
both employers and their supervisory employees. Id. The practical upshot is that,
if Marshall wants to collect front pay and prejudgment interest from either Tidal
Wave or Myers (rather than just Tidal Wave), she must do so under § 1981.
Unfortunately for the Court, most of the binding case law addressing front pay
and prejudgment interest comes under Title VII.
Under Title VII, the rules are clear. Section 706(g) of Title VII authorizes the
award of any “equitable relief as the court deems appropriate,” including both
2
ECF 44.
3
ECF 50.
4
See ECF 43.
front pay and prejudgment interest. 42 U.S.C. § 2000e-5(g)(1); EEOC v. W&O, Inc.,
213 F.3d 600, 619 (11th Cir. 2000) (holding that district courts may equitably award
front pay under § 706(g)); Loeffler v. Frank, 486 U.S. 549, 564 (1988) (holding that
§ 706(g) “provides for prejudgment interest in a Title VII suit against a private
employer”). Front pay is presumptively awarded to a prevailing Title VII plaintiff
where “discord and antagonism between the parties would render reinstatement
ineffective as a make-whole remedy.” Weatherly v. Ala. State Univ., 728 F. 3d 1263,
1272 (11th Cir. 2013). And prejudgment interest may, at a court’s discretion, be
awarded under the formula prescribed by the National Labor Relations Act
(NLRA). EEOC v. Guardian Pools, Inc., 828 F.2d 1507, 1512 (11th Cir. 1987); but see
Mock v. Bell Helicopter Textron, Inc., 2007 WL 2774230, at *5 (M.D. Fla. Sept. 24, 2007)
(calculating prejudgment interest in an age discrimination case under 28 U.S.C.
§ 1961), aff’d, 313 F. App’x 279 (11th Cir. 2009).
Here, Marshall is awarded both front pay and prejudgment interest under
Title VII. Front pay is awarded because Marshall is a prevailing Title VII plaintiff
who has proven several times over, given the torrent of racial and sexual abuse
that Myers inflicted on her at Tidal Wave, that reinstatement would be the
opposite of a remedy in this case. Marshall’s front pay is the difference between
$139.92 (her average daily pay and benefits at Tidal Wave between January 1, 2020,
and August 6, 2021, when she tendered her resignation) and $ 113.53 (her average
daily pay and benefits at her subsequent employer between January 1 and
November 9, 2023) multiplied by a reasonable period of 1277.5 days (three and a
half years, roughly the amount of time she was employed by Tidal Wave), or
$33,713.23.5 Marshall is also awarded prejudgment interest of $1,981.29, which the
Court finds is consistent with the jury verdict and calculated pursuant to the
NLRA using the Internal Revenue Service’s interest rates for unpaid taxes.6
The Court concludes that Marshall is also entitled to front pay and
prejudgment interest under § 1981 in the same amounts as under Title VII—
though the rules here are less clear—for three reasons. First, the Court is unaware
of any case law precluding equitable relief under § 1981. Second, the Eleventh
Circuit has reasoned analogously in other employment discrimination cases, for
example by applying the substantive elements of Title VII to § 1981, Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008), or by applying the damages rules of the
NRLA to Title VII, Guardian Pools, 828 F.2d at 1512. And third, other district courts
in this Circuit have recognized the availability of front pay and prejudgment
interest in § 1981 cases. Kesington v. Interim Physicians, Inc., 2009 WL 10666062, at
*10 (N.D. Ga. Dec. 8, 2009) (“Prevailing … § 1981 plaintiffs may recover … front
pay.”); Collins v. Andrews, 2022 WL 4537875, at *8 (M.D. Ala. Sept. 28, 2022)
5
ECF 44-1, at 7.
6
See ECF 44-1, at 9–10, 9 n.4; ECF 44-3, at 2.
(awarding prejudgment interest under § 1981). Marshall can accordingly collect
front pay and prejudgment interest from Tidal Wave under both Title VII and
§ 1981, and from Myers under § 1981.
Second, Marshall is awarded statutory attorneys’ fees and taxable costs
under both Title VII and § 1981. 42 U.S.C. § 2000e-5(k); 42 U.S.C. § 1988(b). Fees
and costs are awarded according to the “sound discretion” of the trial judge,
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558 (2010). In determining costs, courts
are generally limited to what has been specifically identified as a taxable cost by
28 U.S.C. § 1920. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 445 (1987).
In determining attorneys’ fees, courts in the Eleventh Circuit begin with the socalled “lodestar” amount, calculated by multiplying the “hours reasonably
expended” by the “reasonable hourly rate.” Norman v. Hous. Auth. of City of
Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The lodestar amount is strongly
presumed to be equal to the reasonable fee. Bivins v. Wrap It Up, Inc., 548 F.3d 1348,
1350 (11th Cir. 2008) (per curiam). Courts may, however, adjust the lodestar up or
down depending on factors like the quality of the representation, any time spent
litigating unsuccessful claims, an exceptionally good result, the potential for nonrecovery inherent in a contingent fee arrangement, and the potential for delay in
the plaintiff’s counsel’s receipt of payment. Norman v. Housing Auth. of City of
Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988).
Here, Marshall requests the following fees and costs:
1.
2.
$166,407.50 in attorneys’ fees, for 427.80 total hours of work by six
people, distributed as follows:7
a.
Edward D. Buckley: $37,087.50, for 64.5 hours at $575 per hour;
b.
Joshua K. Brooks: $106,965.00, for 237.7 hours at $450 per hour;
c.
Fatisha H. Martinez: $105.00, for 0.7 hours at $150 per hour;
d.
Bernadette Seals: $16,515.00, for 110.1 hours at $150 per hour;
e.
Camille Mashman: $1,295.00, for 3.7 hours at $350 per hour; and
f.
Paul J. Pontrelli: $4,440, for 11.1 hours at $400 per hour; and
$4,670.10 in costs, distributed as follows:8
a.
Filing fee: $402.00;
b.
Service of process expenses: $1,080.83;
c.
Printing costs: $118.65;
d.
Witness costs: $114.72;
e.
Copying costs: $1,650.00;
f.
Docket fees: $4.90;
g.
Focus group expenses: $1,299.00.
The Court finds that the requested fees for Buckley, Brooks, Seals, and
Pontrelli are reasonable, but that the requested fees for Martinez and Mashman
are not. For Buckley, Brooks, Seals, and Pontrelli, the Court easily concludes that
7
ECF 50-3, at 12.
8
ECF 50-2, at 1–2.
the lodestar amount is reasonable, given the attorneys’ and paralegal’s experience
and qualifications, the prevailing market rate in Atlanta for similar services by
professionals of reasonably comparable skills and experience, Loranger v. Stierheim,
10 F.3d 776, 781 (11th Cir. 1994), and the efforts made to litigate this case efficiently.
The Court concludes with equal ease that the full lodestar amount should be
awarded, given the quality of representation, the result obtained, the contingent
fee arrangement, and the delay in the receipt of payment. However, for Martinez
and Marshman, whose experience and qualifications have not been provided, the
Court cannot determine reasonable hourly fees. Moreover, the low number of total
hours that each billed suggests that their work could have been more efficiently
completed by one of the primary timekeepers on the matter. Marshall is
accordingly awarded attorney’s fees of $165,007.50 for the work performed by
Buckley, Brooks, Seals, and Pontrelli only.
The Court additionally finds that Marshall’s requested costs are authorized
by § 1920, with the exception of focus group expenses. Marshall presents affidavits
explaining the value of focus groups in trial preparation, both generally9 and for
this particular case,10 and the Court has no doubt that the use of focus groups
helped Marshall obtain her desired result at trial. Nevertheless, Marshall provides
9
ECF 50-6, ¶ 21, at 8.
10
ECF 50-4, ¶ 15, at 9.
no legal justification for the reimbursement of focus group expenses as a taxable
cost, under § 1920 or otherwise. And the Court cannot fit Marshall’s focus group
expenses into any of the categories of taxable costs enumerated in § 1920. Marshall
is accordingly awarded costs of $3,371.10 for all her requested costs sans focus
group expenses. Because Marshall is awarded fees and costs premised on the
Defendants’ liability under § 1981, she may collect the full amount from either
Tidal Wave or Myers.
Plaintiff’s motions for equitable relief [ECF 44] and for fees and costs
[ECF 50] are GRANTED. Marshall is awarded $33,713.23 in front pay, $1,981.29 in
prejudgment interest, $165,007.50 in attorney’s fees, and $3,371.10 in costs.
SO ORDERED this 26th day of March, 2024.
Steven D. Grimberg
United States District Judge
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