Alcazar-Anselmo v. City of Chicago et al
Filing
333
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 7/27/2011:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GLADYS ALCAZAR-ANSELMO,
Plaintiff,
Case No. 07 C 5246
v.
Hon. Harry D. Leinenweber
CITY OF CHICAGO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before
the
Court
is
(1)
Defendant
City
of
Chicago’s
(hereinafter, the “Defendant”) Renewed Motion for Judgment as a
Matter of Law or, in the Alternative, a New Trial; (2) Plaintiff
Gladys Alcazar-Anselmo’s (hereinafter, the “Plaintiff”) Motion
for Prejudgment Interest, Liquidated Damages, and Post-Judgment
Interest; and (3) Plaintiff’s Attorneys’ Fees Petition.
I.
BACKGROUND
This case involves Plaintiff’s claim that Defendant violated
the Family Medical Leave Act of 1993 (the “FMLA”) by interfering
with her rights to take medical leave as well as firing her in
retaliation for requesting medical leave. The trial for this case
began on March 14, 2011.
At the close of Plaintiff’s case,
Defendant moved for judgment as a matter of law, arguing that
Plaintiff
substantive
did
not
FMLA
present
rights
or
evidence
that
that
had
she
she
a
was
denied
serious
health
condition that would qualify her for FMLA leave.
denied this motion.
The Court
The jury subsequently ruled in favor of
Plaintiff on her retaliation claim and in favor of Defendant on
the interference claim.
These motions followed.
II.
A.
ANALYSIS
Defendant’s Renewed Motion for Judgment
as a Matter of Law or a New Trial
1.
Judgment as a Matter of Law
In ruling on Defendant’s Rule 50(b) renewed motion for
judgment as a matter of law, the Court determines “whether the
evidence
presented, combined
with
all
reasonable
inferences
permissibly drawn therefrom, is sufficient to support the verdict
when viewed in the light most favorable” to Plaintiff. Mathur v.
Bd. of Trs. of S. Ill. Univ., 207 F.3d 938, 941 (7th Cir. 2000).
The Court assesses “whether no rational jury could have found for
the plaintiff.” Id.
Defendant
argues
that
judgment
as
a
matter
of
law
is
warranted because Plaintiff did not establish that she suffered
from the requisite serious health condition. See Kaufman v. Fed.
Express Corp., 426 F.3d 880, 886–87 (7th Cir. 2005).
health
condition
under
the
FMLA
is
“an
illness,
A serious
injury,
impairment, or physical or mental condition that involves (A)
inpatient care in a hospital, hospice, or residential medical
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care facility; or (B) continuing treatment by a health care
provider.” 29 U.S.C. § 2611. Continuing treatment is defined as:
A period of incapacity of more than three consecutive,
full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition,
that also involves: (1) Treatment two or more times,
within 30 days of the first day of incapacity, unless
extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a
health care provider, or by a provider of health care
services (e.g., physical therapist) under orders of, or
on referral by, a health care provider; or (2)
Treatment by a health care provider on at least one
occasion, which results in a regimen of continuing
treatment under the supervision of the health care
provider.
29 C.F.R. § 825.114(a)(the FMLA citation applicable to this case,
as the cause of action accrued prior to the FMLA amendment on
January 15, 2009).
It is a question of law if an employee
suffers from a serious health condition.
See Bell v. Jewel Food
Store, 83 F.Supp.2d 951, 958 (N.D. Ill. 2000).
Plaintiff was morbidly obese, which led to serious health
issues.
She underwent gastric bypass surgery on January 19,
2006, which resulted in her losing more than 150 pounds in one
year.
This rapid weight loss created excess skin that hung from
Plaintiff’s arms and abdomen.
In his deposition read at trial,
Dr. John Polley, the plastic surgeon who removed this skin,
testified that the skin removal was medically necessary, as the
excess skin could compromise the skin’s integrity and lead to
serious infections, rashes, and hygiene issues.
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Plaintiff first
met with Dr. Polley on February 1, 2007, yet waited until May 3,
2007, to have the surgery — an accommodation to both Dr. Polley’s
and Plaintiff’s schedules.
that this
excess
skin
was
This delay does not show, however,
not
problematic
for
Plaintiff.
Defendant argues that the excess skin did not create an actual
serious medical condition, but only the potential for such a
condition
to
develop.
FMLA
leave
is
determined
not
by
a
potential serious condition, but rather the gravity of the
condition at the time of the request for leave.
See Phillips v.
Quebecor World RAI, Inc., No. 04-C-330, 2005 WL 6126702, at *6
(E.D. Wis. Aug. 16, 2005).
There does not appear to be a dispute that Plaintiff’s
gastric bypass surgery was medically necessary.
Trial testimony
via deposition from both Dr. Polley and Dr. James Madura, the
doctor
who
performed
Plaintiff’s
gastric
bypass
surgery,
established that the continuing treatment from the gastric bypass
could include a skin removal procedure. Plaintiff’s skin did not
tighten anywhere near to its original state after her extreme
weight loss, which led to a condition that a person would not be
reasonably expected to live with if a remedy exists.
Such a
remedy was the plastic surgery, which required Plaintiff to be
incapacitated for more than three days.
The Court already
determined that the excess skin was a serious medical condition
that qualified Plaintiff for FMLA leave.
- 4 -
See Trial Tr. 548:2–4,
Mar. 16, 2011.
It will not disturb this decision.
Accordingly,
Defendant’s Renewed Motion is denied.
2.
Defendant
next
New Trial
argues
that
improper
jury
instructions
created prejudice against it that necessitates a new trial.
It
argues that because the Court gave the jury a mixed-motive
instruction on the retaliation claim, the failure to include an
instruction
with
Defendant’s
affirmative
defense
that
would
eliminate its damages was a legal error that taints the jury’s
verdict.
“A new trial may be granted if the verdict is against
the clear weight of the evidence or the trial was unfair to the
moving party.”
David v.
Caterpillar,
Inc.,
324
F.3d
851,
863 (7th Cir. 2003). One is warranted if Defendant can show that
the allegedly improper jury instructions (1) inadequately stated
the law and (2) “likely confused or misled the jury causing
prejudice to [Defendant].”
Gile v. United Airlines, Inc., 213
F.3d 365, 374–75 (7th Cir. 2000).
The Court provided the following instruction that is the
subject of Defendant’s motion: “Plaintiff does not have to prove
that Plaintiff’s FMLA-protected activity is the only reason
Defendant terminated her.”
Trial Tr. 940:25–941:2, Mar. 17,
2011.
As an initial matter, Defendant did not specifically object
to the absence of an affirmative defense instruction in writing
- 5 -
or during the jury instruction conference that occurred on the
record. Such an objection would have provided notice of the
allegedly erroneous instruction, and eliminated the need for this
motion and the potential for retrial.
F.3d 816, 819 (7th Cir. 2002).
See Chestnut v. Hall, 284
This failure, however, does not
necessarily waive this argument as a ground for a new trial.
Prior to the 2003 amendment to Federal Rule of Civil Procedure
51, Defendant’s failure to raise this issue prior to the Court
charging the jury with its instructions would have constituted a
waiver.
The Court is inclined to rule that Defendant has waived
this argument, as Defendant knew — or should have known — of this
potential flaw in the instructions before they were read to the
jury. Defendant cannot keep an unused arrow in its quiver to use
post-trial if the jury rules against it.
However, during trial
Defendant did raise objections to the instructions that were
related to the argument it now makes.
a
limited,
discretionary,
instructions.
409
(7th
and
Rule 51(d)(2) allows for
plain
error
review
of
jury
See Higbee v. Sentry Ins. Co., 440 F.3d 408,
Cir.
2006).
As
such,
the
Court
will
consider
Defendant’s objection to the instructions, and looks at them as
a whole to “determine whether those instructions completely and
accurately informed the jury of the relevant legal principles.”
Ammons-Lewis
v.
Metro.
Water
Reclamation
Chicago, 488 F.3d 739, 751 (7th Cir. 2007).
- 6 -
Dist.
of
Greater
Turning to Defendant’s motion, the Court finds that a mixedmotive instruction
was
warranted
on
Plaintiff’s
retaliation
claim. See Goezler v. Sheboygan Cnty., Wis., 604 F.3d 987, 995
(7th Cir. 2010).
No pattern instructions exist in this circuit
for FMLA cases.
Proposed instructions exist, yet they do not
address the issue before the Court, as they include a “but for”
instruction on a retaliation claim.
I
n
s
t
r
u
c
Proposed FMLA Pattern Jury
t
i
o
n
s
,
http://www.ca7.uscourts.gov/Pattern_Jury_Instr/pattern_FMLA_jur
y_instr.pdf (last visited July 14, 2011).
Public comment on
these instructions ended on June 30, 2008, before the holding in
Goelzer.
The elements of an FMLA retaliation claim are the same as an
ADA or Title VII retaliation claim.
472 F.3d 471, 481 n.5 (7th Cir. 2006).
See Burnett v. LFW, Inc.,
The Committee Comment for
the pattern employment discrimination instructions includes a
recommended instruction for a mixed motive case:
Plaintiff must prove by a preponderance of the
evidence that [her] [protected class] was a motivating
factor in Defendant’s decision to [adverse employment
action] [her]. A motivating factor is something that
contributed to Defendant’s decision.
If you find that Plaintiff has proved that [her]
[protected class] contributed to Defendant’s [adverse
employment action] [her], you must then decide whether
Defendant proved by a preponderance of the evidence
that it would have [adverse employment action] [her]
even if Plaintiff was not [protected class]. If so,
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you must enter a verdict for the Plaintiff but you may
not award [her] damages.
Seventh Circuit Civil Jury Instructions 3.01 Committee Comment c.
This instruction is culled from Gehring v. Case Corp., 43 F.3d
340, 344 (7th Cir. 1994).
The Court’s failure to include this defense may have been
inconsistent with the recommended language for a mixed-motive
discrimination case, but nevertheless, the instructions informed
the jury of the legal principles it was to apply. Significantly,
Defendant had to present sufficient evidence to allow a mixedmotive affirmative defense.
See Speedy v. Rexnord Corp., 243
F.3d 397, 402 (7th Cir. 2001).
During trial, Defendant elicited
testimony from Norma Reyes (“Reyes”), Michael Tibbs (“Tibbs”),
Adrienne Hiegel (“Hiegel”), and Bernadette Williams (“Williams”)
that Plaintiff’s conduct gave Defendant grounds to fire her from
her position as a deputy commissioner in the Chicago Department
of Consumer Services.
A gaping hole emerges in this testimony,
however, as to Defendant’s mixed-motive defense.
Reyes worked as commissioner of the Department of Consumer
Services.
She was in charge of employment decisions concerning
Plaintiff as her immediate supervisor.
Reyes testified that
Plaintiff was qualified for her job, but that she was divisive
because she lacked interpersonal skills and did not respect
authority.
See, e.g., Trial Tr. 750:1–752:3, Mar. 16, 2011.
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Reyes testified about numerous errors in judgment that Plaintiff
made at during her job.
spoke with
Plaintiff
She did not testify, however, that she
prior to
firing
her
about
taking
any
disciplinary actions against Plaintiff. Granted, Reyes testified
that she was not required to follow a disciplinary procedure
prior to terminating Plaintiff.
However, Reyes firing Plaintiff
for performance reasons without any informal procedure — or at
least a conversation with Plaintiff about potential discipline —
is illogical.
Plaintiff had significant responsibilities as a
deputy commissioner, and according to much of the trial testimony
she performed her job well.
Absent a serious professional or
ethical violation by Plaintiff, or a sudden shift in Defendant’s
budget that required quick and decisive personnel decisions, her
sudden termination immediately prior to her requested medical
leave is suspicious.
Reyes testified that she considered firing Plaintiff after
an incident in which Plaintiff allegedly undermined Reyes’s
authority. Id. at 773:1–13.
However, she did not say that she
communicated
to
this
sentiment
Plaintiff.
Such a
line of
testimony occurs again in regard to an alleged failure in a taxi
medallion renewal program that Plaintiff managed, in which Reyes
said
that
she
thought
about
communicate this to her.
firing
Plaintiff
Id. at 781:18–782:7.
but
did
not
This same
scenario was repeated with an e-mail that Plaintiff sent about
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the planned office for the Maxwell Street Market, as well as an
exchange at a senior staff meeting, which Reyes contends prompted
her to fire Plaintiff. Id. at 792:24–796:5.
At trial, Reyes alluded to two conversations she had with
Plaintiff
in
which
she
communicated
Plaintiff’s job performance.
problems
she
had
with
Reyes, however, did not testify
that she told Plaintiff that these problems created grounds for
discipline or termination.
Id. at 799:24–800:5.
According to
the trial testimony, Reyes never put Plaintiff on notice of any
potential
disciplinary
action.
On
cross-examination,
Reyes
stated that she did not give Plaintiff any form of written
reprimand because she was not required to do so.
Id. at
827:12–828:1. When Reyes talked to Plaintiff about her allegedly
substandard job performance, however, she was simply fulfilling
her responsibility as the supervisor of the department. There is
nothing
unusual
about
an
employee
not
fulfilling
the
high
expectations of a manager.
This does not automatically create
grounds
job.
for
losing
one’s
The
failure
to
give
the
affirmative defense instruction was harmless, as the evidence did
not support this instruction, and it supported the jury’s verdict
in the absence of this instruction. See Lambert v. Ackerley, 180
F.3d 997, 1008 (9th Cir. 1999).
Defendant also objects to the following instruction:
“If
you disbelieve the reasons Defendant has given for its decision,
- 10 -
you may infer Defendant terminated Plaintiff because of her FMLAprotected
activity.”
Trial
Tr.
941:3–6,
Mar.
17,
2011.
Defendant objects to this “permissive pretext instruction” being
given.
The instruction, however, correctly states the law.
Gehring, 43 F.3d at 343.
See
It may not have been necessary or the
best possible instruction for this case, but it did not confuse
or mislead the jury, or prejudice Defendant. It does not provide
grounds for a new trial.
Accordingly, Defendant’s Motion for a
new trial is denied.
B.
Plaintiff’s Motion for Prejudgment Interest,
Liquidated Damages, and Post Judgment Interest
The next issue involves Plaintiff’s proper damages.
The
jury awarded Plaintiff $75,000 in compensatory damages. The FMLA
provides that Plaintiff is entitled to interest on this.
U.S.C. § 2617(a)(1)(A)(ii).
29
The Court has discretion to award
this interest, and it is the norm in federal litigation to award
compound prejudgment interest.
See Rasic v. City of Northlake,
No. 08-C-104, 2010 WL 3365918, at *11 (N.D. Ill. Aug. 24, 2010).
To fully compensate Plaintiff, the Court will not deviate from
the norm, and compounds the interest on a monthly basis. See id.
at *12.
This interest will be calculated from April 27, 2007,
the date on which Plaintiff was fired, until March 18, 2011, the
date when judgment was entered.
See Am. Nat’l Fire Ins. Co. ex
- 11 -
rel. Tabacalera Contreras Cigar Co. v. Yellow Freight Sys., Inc.,
325 F.3d 924, 939 (7th Cir. 2003).
The federal prime rate was 8.05 percent in 2007, 5.09
percent in 2008, and 3.25 percent in 2009 through the date of
judgment. Plaintiff performed an interest calculation, but erred
by extending the accrued interest through the entire month of
March 2011.
that
the
The Court has performed this calculation, and finds
proper
interest
on
the
compensatory
damages
is
$14,476.17.
The FMLA also provides that Defendant is liable to Plaintiff
for liquidated damages of $89,476.17 — the compensatory damages
plus
accrued
prejudgment
interest.
29
U.S.C.
§
2617(a)(1)(A)(iii). The Court can deny this award if it finds
that Defendant’s FMLA violation was “in good faith” and that
Defendant “had reasonable grounds for believing that the act” did
not violate the FMLA.
Id. The Defendant, however, “bears a
substantial burden in showing that it acted reasonably and with
good faith.”
Bankston v. State of Illinois, 60 F.3d 1249,
1254 (7th Cir. 1995)(analyzing the analogous liquidated damages
provision in the Fair Labor Standards Act).
Here, Defendant has
failed to meet this burden. As discussed above, Reyes’ testimony
did not establish a sufficient link between Plaintiff’s alleged
poor work performance and her termination. Rather, the fact that
Plaintiff was fired so close to her requested FMLA leave date
- 12 -
provided grounds for the jury to rule for Plaintiff on her
retaliation claim. Accordingly, Defendant is liable to Plaintiff
for $89.476.17 in liquidated damages.
Plaintiff’s compensatory damages, prejudgment interest, and
liquidated damages add up to $178,952.34.
Defendant is also
liable to Plaintiff for post-judgment interest on this amount at
a rate of 0.252 percent, as provided by 28 U.S.C. § 1961.
C.
Plaintiff’s Attorneys’ Fees Petition
The final post-trial motion involves Plaintiff’s attorneys’
fees and costs provided for in the FMLA.
29 U.S.C. § 2617(a)(3).
Plaintiff seeks a total of $381,029.05 in attorneys’ fees and
costs.
The Court starts its attorneys’ fees calculation by
determining the “loadstar” amount — the number of hours expended
by a reasonable hourly rate.
See Fritcher v. Health Care Servs.
Corp., 301 F.3d 811, 819 (7th Cir. 2002).
A reasonable fee is
determined by the facts of the case, using 12 factors:
“(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 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
- 13 -
nature and length of the professional relationship with the
client; and (12) awards in similar cases.” Hensley v. Eckerhart,
461 U.S. 424, 430 n.4 (1983).
The Court will address the
separate requests Plaintiff makes.
1.
Arthur Ehrlich Attorneys’ Fees
Plaintiff’s lead counsel, Arthur Ehrlich (“Ehrlich”), and
his law clerk claim to have worked 871.88 hours on this case.
As
an initial matter, the $2,075.00 that Plaintiff seeks for the
41.5 hours that Ehrlich’s law clerk worked on this case is not
recoverable. Plaintiff should bear this cost. Second, Plaintiff
has filed an amended fee petition, which asks for reimbursement
of 13.5 hours of additional time Ehrlich spent on this case.
Of
this time, 12.5 of these hours were spent reviewing Defendant’s
response to this fee petition and preparing Plaintiff’s reply.
These 12.5 hours are not recoverable, as allowing this would
encourage protracted battles for attorneys’ fees.
In addition,
Plaintiff’s petition includes 24.28 hours of work that Ehrlich
spent on the initial fees.
(This is an estimate of the time
Ehrlich worked on this petition, as some of these hours have been
lumped in the bill with work on other motions.
Because the Court
cannot determine which portion of this time was spent on the fees
petition, it counts all of these hours toward this issue.)
Again, making Defendant liable for these hours could encourage
protracted fees disputes. If a prevailing attorney could recover
- 14 -
fees for all of the work on a fees petition, he could be
motivated to pile on the hours for a petition.
The Court has
discretion, and uses it, to deny this fee request for proving
fees.
See Muscare v. Quinn, 680 F.2d 42, 45 (7th Cir. 1982).
With these hours removed from the petition, the Court finds,
over Defendant’s objection, that Ehrlich’s itemized bill reflects
a reasonable number of hours for the work involved in this
litigation.
The proceedings over the last four years included
extensive discovery, a settlement conference, preparation for a
trial date in 2009 that did not occur because of Defendant’s
request for
additional
discovery,
cross-motions
for
summary
judgment, and preparations for and presiding over the March 2011
trial. Accordingly, the Court bases its attorneys’ fees award on
793.6 hours that Ehrlich worked on this case.
Next, Ehrlich asks for $400 per hour. Ehrlich has been a
licensed attorney for more than 25 years, during which time he
has represented plaintiffs in federal court.
Prior to 2011, he
billed $350 per hour, but he states that he set a $400 hourly
rate for this case because he took it on contingency.
Ehrlich’s
customary rate of $350 per hour would be more reasonable in this
case, as the risk that he took in representing Plaintiff does not
warrant a 14.3 percent increase in his hourly rate.
lodestar amount for Ehrlich is $277,760.00.
- 15 -
As such, the
Defendant argues that because Plaintiff was successful on
only one of her two claims, as well as received less than 20
percent of the monetary relief she sought, the lodestar figure
should be reduced significantly.
Because of Plaintiff’s partial
success, the Court “‘may attempt to identify specific hours that
should be eliminated, or it may simply reduce the award to
account for the limited success.’”
Sottoriva v. Claps, 617 F.3d
971, 975 (7th Cir. 2010)(quoting Hensley, 461 U.S. at 436–37).
The Court has discretion to determine if the lodestar figure
represents
an
excessive
amount,
but
it
must
exercise
this
discretion within the framework of Hensley. Id. at 437.
The
work
involved
in
representing
Plaintiff
on
the
retaliation and interference claims was substantially related,
and cannot be itemized separately with any particularity.
In
fact, only one of the line items in Ehrlich’s statement — the
entry for 4.67 hours on May 5, 2011 — mentions whether the work
was performed for the retaliation or interference claim.
Of
course, because this designation does not appear on the statement
does not mean that Ehrlich did not devote significant hours to
each cause of action separately.
The Court, however, does not
expect such an exact itemization of Ehrlich’s time.
Despite
the
fact
that
Plaintiff’s
retaliation
and
interference claims are inextricably intertwined, her success on
only the retaliation claim warrants a reduction in recoverable
- 16 -
fees.
See Roseboro v. Billington, 618 F.Supp.2d 85, 89 (D.D.C.
2009).
The Court finds that a 25 percent reduction is proper.
Plaintiff’s failure on one claim is the primary factor in this
decision.
The attorneys’ fees would have been substantially the
same, however, if Plaintiff had pursued only the retaliation or
interference claim. A 50 percent reduction would be too severe,
and such “claim counting” is improper.
at 976.
time
See Sottoriva, 617 F.3d
Further, the Court is allowing Ehrlich to recover for
spent
in
responding
to
Defendant’s
motion
to
dismiss
Plaintiff’s intentional infliction of emotional distress claim,
which Judge Wayne Anderson dismissed.
Accordingly, the Court
awards Plaintiff $208,320.00 for Ehrlich’s attorneys’ fees.
2.
Elliot Richardson and Kevin Keeley Attorneys’ Fees
Elliot Richardson (“Richardson”) served as Plaintiff’s cocounsel for trial. He has been a licensed attorney since 1998,
and has represented plaintiffs in federal civil rights cases
since 2000.
He claims to have worked 79.48 hours on this case,
and seeks $350 per hour.
He states that his usual hourly rate
ranges between $300 and $350 per hour, but that the higher rate
is appropriate here because he too took this case on contingency.
For the reasons set forth above in the analysis of Ehrlich’s
fees, the higher hourly rate is not reasonable. Also, Richardson
has about 15 years less experience than Ehrlich in federal
litigation.
As such, a $300 per hour rate is reasonable, making
- 17 -
the lodestar figure for Richardson $23,844.00. Richardson’s fees
are
also
reduced
by
25
percent
due
to
Plaintiff’s
partial
success, so Plaintiff is awarded $17,883.00 for Richardson’s
attorneys’ fees.
Plaintiff also seeks fees for Richardson’s legal assistant,
Jessica Botello (“Botello”).
All of the 39.5 hours that Botello
worked, however, appear to be clerical, and are not recoverable.
See Firestine v. Parkview Health Sys., Inc., 374 F.Supp.2d 658,
667 (N.D. Ind. 2005).
Examples of her work include:
“Printed
and organized all deposition transcripts” (12/27/2010); “Prepared
documents for attorney review” (3/4/2011); “Prepared exhibits and
exhibit binders” (3/8/2011); “Prepared documents and materials
for trial; and Made deliveries to court” (3/16/2011).
The only
entries that come close to resembling allowable fees are those
for editing motions and preparing exhibits.
This work, however,
when considering Richardson’s affidavit, appears to be clerical
as well.
Finally, Plaintiff seeks fees for 65.7 hours of work that
Kevin Keeley (“Keeley”) devoted to her case.
Keeley is a recent
law school graduate who has been a licensed Illinois attorney
since November 2010.
He seeks $175 an hour for work that
included drafting and responding to motions in limine, as well as
preparing for and assisting at trial.
Keeley states in his
affidavit that he charges between $150 and $225 per hour for his
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services.
The Court finds that the $150 rate is reasonable,
making his lodestar figure $9,855.00.
For the reasons stated
above, this is reduced by 25 percent, giving Plaintiff $7,391.25
for Keeley’s attorneys’ fees.
3.
Plaintiff’s Costs
The FMLA allows a prevailing plaintiff to recover the
reasonable costs of her case.
29 U.S.C. § 2617(a)(3).
Federal
Rule of Civil Procedure 54(d) “creates a presumption in favor of
awarding costs.”
Coyne-Delany Co., Inc. v. Capital Dev. Bd. of
State of Illinois, 717 F.2d 385, 390 (7th Cir. 1983).
The costs
allowed in an FMLA case include essentially all the same taxable
items for a bill of costs set forth in 28 U.S.C. § 1920.
See
Vaccaro v. Custom Sounds, Inc., No. 3:08-CV-776, 2010 WL 1223907,
at *6 (M.D. Fla. Mar. 4, 2010)(awarding costs under the Fair
Labor Standards Act using a similar analysis to that used in a
motion under 28 U.S.C. § 1920).
The Court must determine if the
claimed
and
costs
are
reasonable
necessary.
See
Deimer
v.
Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 345 (7th Cir.
1995).
a.
Deposition Transcripts and Court Reporter Fees
Plaintiff
seeks
to
recover
$5,885.03
transcript and court reporter attendance fees.
in
deposition
If a prevailing
party obtains a transcript for a use necessary in a case, it may
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recover the full cost of the transcript as long as the cost does
not exceed the regular copy rate established by the Judicial
Conference of the United States at the time of the deposition.
N.D. Ill. R. 54.1(b). The maximum rate allowed at the time of the
depositions in this case was $3.65 per page.
See, Maximum
T
t
r
a
n
s
c
r
i
p
t
R
a
e
s
,
http://www.ilnd.uscourts.gov/CLERKS_OFFICE/CrtReporter/trnscrpt
.htm (last visited July 14, 2011).
A number of the invoices for
deposition transcripts do not include the number of pages in the
transcript.
As such, they are insufficiently documented to be
taxable, as the Court cannot determine if they comply with the
maximum page rate.
These are:
Samantha Olson (9/23/2009); Eric
Robinson (9/30/2009); Isabel Esparza (5/14/2009); Richard Anselmo
(9/5/2008);
Gladys
Alcazar-Anselmo
(7/25/2008);
Fernando
Striedinger (10/7/2008); and John Polley (9/11/2008).
The other
transcripts are taxable as they are properly documented and have
allowable page rates.
Plaintiff also seeks to recover shipping
and
charges
e-mail
delivery
for
these
reports,
which
are
unrecoverable ordinary business expenses, and will be deducted
from Plaintiff’s recovery.
See Menasha Corp. v. News Am. Mktg.
Instore, Inc., No. 00-C-1895, 2003 WL 21788989, at *3 (N.D. Ill.
July 31, 2003). Accordingly, Plaintiff can recover $1,471.00 in
deposition transcript costs.
- 20 -
Plaintiff is also entitled to court reporter deposition
attendance fees as long as they are sufficiently documented and
reasonable.
See
id.
at
*2
(finding
a
$60
hourly
rate
reasonable). All of the court reporter attendance fees are
properly
documented
except
for
that
of
Isabel
Esparza’s
deposition on September 9, 2008, as this invoice does not include
how long the deposition lasted.
This cost is not recoverable.
The fees are also reasonable except for the two-hour overtime
charge for the August 27, 2008, Norma Reyes deposition.
deposition appears to have lasted six hours.
The
Plaintiff provides
no explanation as to why two of these hours are billed as
overtime.
Accordingly, recovery for the two overtime hours will
be reduced to $62.50 per hour, the regular fee for the court
reporter.
In sum, Plaintiff can recover $1,031.25 in court
reporter attendance costs.
b.
Document and Other Costs
Plaintiff seeks $2,294.64 for copies and trial binders. The
prevailing party may tax as costs copies of materials necessarily
obtained for use in a case.
28 U.S.C. § 1920(4).
The Court
finds that the costs sought for the trial exhibit binders and
color
copies
documented.
of
the
photos
from
Dr.
Polley
The copy costs, however, are not.
are
properly
While Plaintiff
does not need to provide a description of the copying “so
detailed as to make it impossible economically to recover” these
- 21 -
costs, she must provide a sufficient breakdown of the copying.
See Northbrook Excess & Surplus Ins. Co. v. Procter & Gamble Co.,
924 F.2d 633, 643 (7th Cir. 1991).
She fails to do this, but
rather states only that these were copy charges.
As such, they
are not recoverable. Plaintiff’s recovery for document costs is
thus reduced to $560.34.
Two other costs remain. First, Plaintiff seeks witness fees
for two deposition and one trial subpoena. Pursuant to 28 U.S.C.
§ 1821(b), a witness shall be paid $40 for each day attending a
trial or deposition, as well as the costs to travel to and from
the courthouse or deposition.
seeks
for
these
witnesses
The travel fees that Plaintiff
are
not
properly
documented.
Therefore, Plaintiff can recover only $120.00 for these three
witness fees.
Second, Plaintiff seeks $369.72 in Westlaw fees
that were incurred outside of Ehrlich’s research plan. The Court
grants these, as such online research fees are recoverable in a
motion for attorneys’ fees.
See Rasic, 2010 WL 3365918, at *11.
Plaintiff can recover a total of $3,553.21 in costs.
In
sum, she can recover $237,097.46 in attorneys’ fees and costs.
III.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Defendant’s Renewed Motion for Judgment as a Matter of
Law, or, in the Alternative, a New Trial is denied.
- 22 -
2.
Plaintiff’s Motion for Prejudgment Interest, Liquidated
Damages, and Post-Judgment Interest is granted.
3.
Plaintiff’s Petition for Attorneys’ Fees and Costs is
granted in part and denied in part.
Defendant is liable to
Plaintiff for $178,952.34 in compensatory damages, prejudgment
interest,
and
liquidated
damages,
as
well
as
post-judgment
interest on this amount at a rate of 0.252 percent. Defendant is
also liable to Plaintiff for $237,097.46 in attorneys’ fees and
costs.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE: 7/27/2011
- 23 -
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