Rodriguez v. City of Chicago

Filing 240

Opinion and Order Signed by the Honorable Joan H. Lefkow on 9/24/2013: Rodriguez's petition for attorneys' fees [dkt. 222] is granted in part and denied in part. The court awards Rodriguez attorneys' fees in the amount of $217,053.00 and costs and expenses in the amount of $7,011.64, for a total fee award of $224,064.64.Mailed notice(mad, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TERESA RODRIGUEZ, by
RICHARD M. FOGEL, TRUSTEE
Plaintiff,
v.
CITY OF CHICAGO,
Defendant.

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No. 08 C 4710
Judge Joan H. Lefkow

OPINION AND ORDER
Teresa Rodriguez brought suit against the City of Chicago (“City”), alleging interference
with her rights and retaliation in violation of the Family and Medical Leave Act (“FMLA”),
29 U.S.C. §§ 2601 et seq., discrimination in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101 et seq., and discrimination in violation of the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq. The court granted the
City summary judgment on Rodriguez’s ADA claim but allowed her case to proceed on the
FMLA claims.1 Shortly before trial was to commence, on January 6, 2012, the parties notified
the court that they had reached a settlement on Rodriguez’s remaining FMLA claims. The
settlement included a $99,000 lump-sum payment and also provided for reasonable attorneys’
fees and costs. The parties failed to agree on the amount of attorneys’ fees and Rodriguez filed
the present petition seeking $270,755.00 in attorneys’ fees and $7,011.64 in costs.2 For the

1

Rodriguez voluntarily dismissed her ERISA claim before the summary judgment briefing. See

Dkt. 49.
2

Northern District of Illinois Local Rule 54.3 “requires parties who cannot agree on the amount
of fees to file a motion documenting fees, hours, rates, and objection to the fees, hours and rates of the
opposing party.” RK Co. v. See, 622 F.3d 846, 854 (7th Cir. 2010); N.D. Ill. L.R. 54.3(e).

reasons set forth herein, Rodriguez’s petition for attorneys’ fees is granted in part and denied in
part. The court awards Rodriguez attorneys’ fees in the amount of $217,053.00 and costs and
expenses in the amount of $7,011.64, for a total fee award of $224,064.64.
LEGAL STANDARD
Under the FMLA, the prevailing party shall recover an award of reasonable attorneys’
fees and costs. See 29 U.S.C. § 2617(a)(3); Franzen v. Ellis Corp., 543 F.3d 420, 430 (7th Cir.
2008). In ascertaining the amount of the award, the court initially determines the lodestar
amount. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983);
Johnson v. GDF, Inc., 668 F.3d 927, 929–30 (7th Cir. 2012). The court may then adjust the
lodestar amount upward or downward depending on a variety of factors, such as the degree of
success, the novelty and difficulty of the issues, and awards in similar cases. Hensley, 461 U.S.
at 430 n.3, 434. Although only disputed matters are discussed in this opinion, the court has
reviewed all of the materials submitted by the parties in reaching its conclusions.3
ANALYSIS
I.

Calculating the Lodestar Amount
To determine the lodestar, the court calculates the number of hours reasonably expended

and multiplies that number by a reasonable hourly rate for each moving attorney. Hensley,
461 U.S. at 433. “An award of the originally calculated lodestar is presumptively reasonable,
and it is the City's burden to convince [the court] that a lower rate is required.” Robinson v. City

3

In the settlement agreement, the parties agreed that Rodriguez would be deemed a prevailing
party with regard to her FMLA claims to allow the court to award attorneys’ fees and costs.

2

of Harvey, 489 F.3d 864, 872 (7th Cir. 2007) (citations omitted). Rodriguez’s request is
summarized as follows4:
RODRIGUEZ'S LODESTAR CALCULATION

John Madden

Hours
339.7

Rate
$350

Total
$118,895.00

Ylda Kopka

330.6

$250

$82,650.00

Jacob Shorr

242.3

$225

$54,517.50

Dara Friedman

51.1

$225

$11,497.50

Lindsey Goldberg

14.0

$225

$3,150.00

Total

952.50

$270,710.00

The City contests the reasonableness of Rodriguez’s proposed hourly rates and argues
that the proposed lodestar amount is unreasonable because Rodriguez achieved only partial
success on her claims. The City contends that the fee award should be no more than
$194,408.14.
A.

Reasonableness of Attorney Hourly Rate

Rodriguez bears the initial burden of demonstrating that the requested hourly rates for her
attorneys are “in line with those prevailing in the community.” Pickett v. Sheridan Health Care
Ctr., 664 F.3d 632, 640 (7th Cir. 2011) (quoting Blum v. Stenson, 465 U.S. 886, 895 n.11,
104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984)). If this burden is met, the City then has the burden to
“offer evidence that sets forth ‘a good reason why a lower rate is essential.’” Id. (quoting People
Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1313 (7th Cir. 1996)). If Rodriguez fails to
4

The figures for this lodestar calculation are based on revisions submitted by Rodriguez in her
reply in support of her petition for attorneys’ fees. See Dkt. 233.

3

satisfy her burden, the court has the authority to determine a reasonable rate. See Uphoff v.
Elegant Bath, Ltd., 176 F.3d 399, 409 (7th Cir. 1999).
To substantiate the reasonableness of her hourly rates, Rodriguez provided affidavits
from her attorneys, John P. Madden and his associates who worked on the case, Ylda M. Kopka,
Jacob B. Shorr, Dara E. Friedman, and Lindsey E. Goldberg. Rodriguez also submitted
affidavits from three practicing attorneys working in Chicago specializing in employment
discrimination, David E. Lee, J. Bryan Wood, and Marshall J. Burt. Rodriguez additionally
provided the court with a summary of eight retainer agreements her attorneys entered into with
other clients with similar employment disputes between March 2011 and October 2012. Relying
on these materials as support, Rodriguez argues for the following hourly rate: $350 for Mr.
Madden; $250 for Ms. Kopka; and $225 for Mr. Shorr, Ms. Friedman, and Ms. Goldberg.5
The City first argues that using current market rates for Rodriguez’s attorneys would
represent a windfall by allowing them to recover their present billing rates for work performed
over the past six years. The City argues that her attorneys should be compensated based on a
historical hourly rate including interest. The City relies on Garcia v. Oasis Legal Financial
Operating Company, in which Mr. Madden and Ms. Kopka’s services were respectively valued
at a $300 hourly rate and a $185 hourly rate. 608 F. Supp. 2d 975, 979–80 (N.D. Ill. 2009).
Furthermore, in March 2010, Magistrate Judge Nolan granted Rodriguez’s Petition for

5

Rodriguez also relies on the Laffey Matrix rates, guidelines used in the U.S. District Court for
the District of Columbia in fee-shifting cases, which suggest that a $435 hourly rate (without taking into
account the locality pay differential) is appropriate for an attorney with Mr. Madden’s experience, and a
$240-285 hourly rate is appropriate for the four remaining associates. The Seventh Circuit, however, has
not formally adopted the Laffey Matrix, and judges in this district typically consider it as only one factor
in determining a reasonable rate. See Gibson v. City of Chicago, 873 F. Supp. 2d 975, 983–84 (N.D. Ill.
2012).

4

Attorneys’ Fees in connection with a motion to compel compliance with a subpoena, calculating
a $300 hourly rate for Mr. Madden, a $185 hourly rate for Ms. Kopka, and a $150 hourly rate for
Ms. Friedman.
Rodriguez argues, however, that the court should use the current market rate. Rodriguez
notes that this case took six years to reach a resolution and awarding a historical rate would
penalize her attorneys because it does not compensate them for the delay in reaching a
settlement. In determining how to best compensate an attorney for the delay associated with
collecting a fee award, courts may base the award on current rates or use historical rates while
adjusting the fee to reflect its present value. See Perdue v. Kenny A ex. rel. Winn, 559 U.S. 542,
556, 130 S. Ct. 1662, 176 L. Ed. 2d 494 (2010); Missouri v. Jenkins by Agyei, 491 U.S. 274,
282–84, 109 S. Ct. 2463, 105 L. Ed. 2d 229 (1989). The Seventh Circuit has approved of both
approaches. See Smith v. Vill. of Maywood, 17 F.3d 219, 221 (7th Cir. 1994); although using the
current market rate seems preferred. Lightfoot v. Walker, 826 F.2d 516, 523 (7th Cir. 1987) (“To
compensate for the delay in payment and to simplify its calculation, courts often calculate fee
awards using current market rates as opposed to historic rates.”); see also Skelton v. Gen. Motors
Corp., 860 F.2d 250, 255 n.5 (7th Cir. 1988) (“The courts in this circuit generally use current
rates.”). But see Shott v. Rush-Presbyterian-St. Luke’s Med. Ctr., 338 F.3d 736, 745 (7th Cir.
2003) (“[T]he historical-rate-plus-interest method is probably the most accurate and
straightforward.”); Matter of Continential Ill. Securities Litig., 962 F.2d 566, 571 (7th Cir. 1992)
(same).
There is no indication that the delay in resolving this case was the fault of Rodriguez.
See In re Milwaukee Cheese Wis., Inc., 112 F.3d 845, 849 (7th Cir. 1997) (“Gratuitous delay by

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the party seeking the award-delay that injures the other side by forcing it to act as an
uncompensated trustee or investment manager-might be a reason to limit an award of interest.”).
Nor did the City offer any means of calculating an appropriate interest rate that would reflect the
present day value of the legal services rendered by Rodriguez’s attorneys, which in some
instances can actually be higher than an attorney’s current market rate. See Lightfoot, 826 F.2d
at 523; Dupuy v. McEwen, 648 F. Supp. 2d 1007, 1017–18 (N.D. Ill. 2009); Quinones v. City of
Evanston, No. 91 C 3291, 1995 WL 656690, at *6 (N.D. Ill. Nov. 6, 1995). The rates that
Rodriguez’s attorneys previously received in this case and in Garcia do not adequately
compensate them for the delay in receiving fees for their work on the case. Using the current
market rates for Rodriguez’s attorneys is the simpler of the two approaches, see Jones v. R.R.
Donnelley & Sons, No. 96 C 7717, 2005 WL 14923, at *4 (N.D. Ill. Jan. 3, 2005), and also fairly
compensates her attorneys for the time spent litigating the case over the past six years. See
Duran v. Town of Cicero, No. 01 C 6858, 2012 WL 1279903, at *16 (N.D. Ill. Apr. 16, 2012);
Holstrom v. Metro. Life Ins., Co., No. 07 C 6044, 2011 WL 2149353, at *7 n.8 (N.D. Ill.
May 31, 2011).
The City next argues that Rodriguez failed to substantiate her attorneys’ current hourly
rates. To establish the reasonableness of Mr. Madden’s hourly rate, Rodriguez submitted his
affidavit, affidavits from three other practicing attorneys, and representative client contracts. In
his affidavit, Mr. Madden states that his current billing rate is $350. The third party attorney
affidavits all stated that Mr. Madden’s hourly rate was reasonable. Those affidavits further
elucidated on the hourly rates charged by those attorneys. Mr. Lee, an attorney with
approximately 35 years of experience, charges $525 an hour; Mr. Wood, an attorney with

6

approximately 13 years of experience charges $350 an hour; and Mr. Burton, an attorney with
approximately 25 years of experience, charges between $275 and $350 and stated that his fee is
$350 for cases filed in federal court where no contingency agreement is in place. Last,
Rodriguez submitted eight retainer agreements with other clients from 2011 to 2012. In seven of
those agreements, Mr. Madden charged an hourly rate of $350 while in the most recent
agreement from October 2012, Mr. Madden’s hourly rate was $375.
The City argues that this evidence is insufficient to substantiate an hourly rate of $350 for
Mr. Madden. With regard to the affidavits submitted by third party attorneys, the City notes that
Mr. Lee was the only attorney who provided an hourly rate based on current engagements for
similar work and Mr. Lee had 20 more years of experience than Mr. Madden. While Mr. Lee
has been practicing longer than Mr. Madden, the former’s hourly rate is also approximately $175
higher. Mr. Wood, who approximately has the same amount of experience as Mr. Madden,
charges $350 an hour. Mr. Burton, who has ten additional years of experience than Mr. Madden,
also charges $350 an hour for matters in federal court. Indeed, Mr. Wood’s hourly rate has
increased from $300 in 2009 to $350 at present, a rate of increase that is consistent with Mr.
Madden’s request for an increase in his hourly rate to $350. These attorneys also all stated than
an hourly rate of $350 for Mr. Madden was reasonable; however, their opinions on Mr.
Madden’s reasonable hourly rate are not as persuasive. See Batt v. Micro Warehouse, Inc., 241
F.3d 891, 895 (7th Cir. 2001). Mr. Madden also submitted his own affidavit stating that his
hourly rate was $350 and, while the City contests that this affidavit is self-serving, Rodriguez
additionally provided representative retainer agreements from the past two years corroborating
that Mr. Madden’s hourly rate is $350. See Denius v. Dunlap, 330 F.3d 919, 930 (7th Cir. 2003)

7

(“The attorney’s actual billing rate for comparable work is presumptively appropriate to use as
the market rate.”) (internal quotation marks omitted); People who Care, 90 F.3d at 1312 (“The
goal is to determine what the attorney could have made if he were not representing this plaintiff
in this case.”) (internal quotation marks omitted). Accordingly, Rodriguez has satisfied her
burden demonstrating that Mr. Madden is entitled to an hourly rate of $350 for work performed
on this case, which the City failed to rebut.6
The City further contests the hourly rate for the four associates who worked on this case
during the litigation. The City contends that Rodriguez seeks the same or substantially similar
rates for attorneys who had recently graduated from law school and those with three to four years
of experience. The City argues that these attorneys had different levels of experience when they
worked on the case and that their market rate should reflect the level of experience that they had
at that time. Specifically, Ms. Kopka was admitted to practice in 2005 and worked on this case
from 2007 to 2009. Ms. Friedman was admitted to practice in 2008 and worked on this matter
from 2009 to 2010. Neither attorney still works at Mr. Madden’s firm, O’Malley and Madden
P.C. Mr. Shorr was admitted to practice in 2009 and has worked at Mr. Madden’s firm since that
time. Ms. Goldberg was admitted to practice in 2009 and joined Mr. Madden’s firm in 2011.
Rodriguez requests an hourly rate of $250 for Ms. Kopka and a $225 hourly rate for Ms.
Friedman, Mr. Shorr, and Ms. Goldberg.
Rodriguez relies on affidavits submitted by these attorneys, the third party attorney
affidavits, and the retainer agreements. Ms. Kopka and Ms. Friedman’s affidavits detail their

6

In the Local Rule 54.3(e) Joint Statement, the City did not contest an hourly rate of $350 for
Mr. Madden after March 2010.

8

skill level but do not indicate their current hourly rate as they no longer practice at Mr. Madden’s
firm. Mr. Shorr and Ms. Goldberg state that their hourly rates are $225. The third party
affidavits all detail that an hourly rate of $225 to $250 for attorneys of similar skill level was
reasonable; however, the affidavits lack details such as whether these attorneys have associates
who bill at similar rates.
Moreover, the retainer agreements provide that Mr. Madden’s associate hourly rates over
the past two years ranged from $200 to $225. A rate of $250 for Ms. Kopka’s exceeds amounts
provided in the retainer agreements for associate work. As the retainer agreements detail that a
rate of $225 was at the high end of the spectrum for associate work performed, that rate fairly
reflects Ms. Kopka’s work on the case as she had the most experience of all the associates who
worked on this case. With respect to the other associates who worked on the case, considering
that they did not have the years of experience of Ms. Kopka, an hourly rate of $200 reasonably
compensates their time performed on the case.7 These rates are in line with what Mr. Madden
has charged as an hourly rate as detailed by the retainer agreements. Indeed, because Rodriguez
failed to carry her burden establishing the hourly rates for the associate attorneys, the court
concludes that an hourly rate of $225 for Ms. Kopka and a rate of $200 for Mr. Shorr, Ms.
Friedman, and Ms. Goldberg is reasonable. See Uphoff, 176 F.3d at 409 (court did not abuse its
discretion in reducing hourly rate in light of the plaintiffs’ failure to sustain their burden of
substantiating that hourly rate).
7

Rodriguez also submitted an order and decision from the State of Illinois Human Rights
Commission awarding fees based on a $225 hourly rate for Ms. Goldberg. This finding, however, is not
conclusive evidence that Ms. Goldberg and the other associates’ hourly rate is $225 considering that the
retainer agreements state that associates at Mr. Madden’s firm also bill at a rate of $200 an hour. See
Pickett, 664 F.3d at 646 (“A district court is entitled to determine the probative value of each
[evidentiary] submission.”) (internal quotation marks omitted).

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B.

Reasonableness of the Number of Hours Expended

The City argues that Rodriguez seeks fees for several tasks that were needless and
unsuccessful. Specifically, the City requests the court deny any fees related to (1) Rodriguez’s
motion to strike the City’s reply to the plaintiff’s statement of additional material facts during the
summary judgment briefing; (2) Rodriguez’s motion to enforce the settlement agreement and
subsequent research for a motion to reconsider that was never filed; and (3) time spent in
preparing the present fee petition.8
What qualifies as a “reasonable” use of a lawyer's time “is a highly contextual and factspecific enterprise,” and as such, the court has “wide latitude” in awarding attorney’s fees.
Sottoriva v. Claps, 617 F.3d 971, 975 (7th Cir. 2010) (internal quotation marks omitted). The
court considers whether hours are “excessive, redundant, or otherwise unnecessary” and may
reduce the lodestar calculation, for example, for hours spent on unrelated and unsuccessful
claims, hours attorneys would not bill to their clients, and hours for which the prevailing party
has failed to provide adequate support. Hensley, 461 U.S. at 433–34. Because of its familiarity
with the litigation, the court is in the best position to determine the number of hours reasonably
expended in the litigation. See McNabola v. Chicago Transit Auth., 10 F.3d 501, 519 (7th Cir.
1993).
1.

Rodriguez’s Motion to Strike

8

In their Local Rule 54.3(e) Joint Statement, the City objected to time spent in connection with
briefing filed by Rodriguez that it described as unsuccessful. Included in the City’s list of unsuccessful
briefing were (1) Rodriguez’s Response to the City’s Motion to Subpoena Medical Records, Depose
Rodriguez’s Treaters and for Additional Time to Depose Rodriguez; and (2) Rodriguez’s Response to the
City’s Motion for Leave to Subpoena Plaintiff’s Medical Records and Subpoena Rodriguez’s Treaters for
Deposition. In its response to Rodriguez’s fee petition, however, the City did not contest Rodriguez’s
request for her attorneys’ time spent on these two motions. Accordingly, the court will include that time
in computing the lodestar amount.

10

The City claims Rodriguez’s Motion to Strike Defendant’s Reply to Plaintiff’s Statement
of Additional Facts was unnecessary and is disfavored according to this court’s standing order.
Rodriguez argues that the motion to strike was necessary to respond to improper objections
raised by the City in its reply in support of its motion for summary judgment. In the summary
judgment briefing, the City initially filed a motion to strike Rodriguez’s statements of facts for
not complying with Local Rule 56.1. In turn, Rodriguez then filed a motion to strike the City’s
reply to her statement of additional material facts, also arguing that the City failed to comply
with Local Rule 56.1. Rodriguez also moved to strike the City’s affidavit of a witness whom it
had not previously disclosed under Federal Rule of Civil Procedure 26.
The court noted in its summary judgment opinion that the majority of both parties’
objections were without merit and neither side fully complied with Local Rule 56.1 As is its
customary practice when presented with summary judgment briefing that does not track the local
rules, the court only considered properly presented evidence when ruling on the motion for
summary judgment. The court was aware of the shortcomings in both sides presentment of the
statement of facts and, accordingly, only considered material properly presented in accord with
Local Rule 56.1. Rodriguez’s motion to strike was not necessary to the disposition of the
summary judgment briefing. Accordingly, Rodriguez is not entitled to fees in connection with
filing this motion to strike as it was ultimately unnecessary to the court’s resolution of the
summary judgment briefing. See, e.g., Stark v. PPM Am., Inc., 354 F.3d 666, 674 (7th Cir.
2004) (“Hours spent are not reasonably expended if they are excessive, redundant, or otherwise
unnecessary.”). The court will reduce 1.5 hours from Mr. Madden’s time and 8.2 hours from
Mr. Shorr’s time expended on the motion to strike.

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2.

Rodriguez’s Motion to Enforce the Settlement Agreement

The City next contends that the time spent by Rodriguez’s counsel on the motion to
enforce the settlement agreement was unnecessary and wasteful because there was no dispute
that the City would pay Rodriguez’s attorneys’ fees. That the motion was denied, argues the
City, warrants excluding time spent on the motion by Rodriguez’s attorneys in computing their
fee award. Rodriguez argues that the purpose of the motion to enforce the settlement was to
clarify that the parties originally conditioned the settlement on the entry of a stipulated judgment
so that the court could subsequently entertain a fee petition and award attorneys’ fees. The court
ruled, however, that although the parties initially may have contemplated the entry of a stipulated
judgment, their subsequent modification of the agreement rendered the stipulation optional. The
court further noted that the parties could include language regarding attorneys’ fees in their
settlement agreement, which would permit the court to enforce an agreement providing for
attorneys’ fees to Rodriguez. While the order provided clarity to the parties regarding language
to include in their settlement agreement, filing a motion was unnecessary to achieve this result as
less expensive alternatives were available. In a similar vein, time spent on a contemplated
motion to reconsider a ruling denying a motion that was unnecessary in the first place is not
compensable. See Hensley, 461 U.S. at 434. Accordingly, Rodriguez may not obtain fees for
the time spent by her attorneys in connection with the motion to enforce the settlement
agreement. The court will thus deduct 24.8 hours from Mr. Madden’s time9, 2 hours from Ms.
Goldberg’s time, and .40 hours from Mr. Shorr’s time.

9

The court excluded Mr. Madden’s time from February 13, 2012 as it was not related to the
motion to enforce the settlement agreement.

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3.

Rodriguez’s Request for Fees for Time Spent on her Reply in Support
of the Fee Petition

Rodriguez additionally seeks compensation for the time spent by her attorneys preparing
their reply to the City’s response opposing her fee petition. A plaintiff may recover time spent
preparing a fee petition if reasonable. See Ustrak v. Fairman, 851 F.2d 983, 988 (7th Cir.1988).
In determining the reasonableness of time spent preparing a fee petition, courts consider “the
comparison between the hours spent on the merits and the hours spent on the fee petitions.”
Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 554 (7th Cir. 1999). The court may reduce
the recoverable time spent preparing the fee petition if it is disproportionate to the time spent
litigating the case. See Gibson, 873 F. Supp. 2d at 992.
Rodriguez obtained leave to file a reply arguing that the City had taken contrary positions
in its response and its objections to her initial fee petition and that the City raised new arguments
in its response not previously presented in its objections. Namely, Rodriguez argues that the
City raised for the first time that she had not provided billing records detailing what her
attorneys charged other clients. In addition, the City, argues Rodriguez, challenged Mr.
Madden’s hourly rate after agreeing that his rate should be $350 for the period of time after
March 2010. The City additionally provided that Rodriguez’s attorneys should be compensated
at a historical rate instead of the current market rate. Last, Rodriguez argues that the City again
for the first time requested a 30 percent reduction of the lodestar amount based on the fact that
the ultimate settlement amount was conservative and the case presented limited public value,
warranting a blanket reduction.
Rodriguez states that Mr. Shorr spent 18.5 hours reviewing the City’s response, updating
and supplementing legal research, preparing supplemental exhibits, and drafting the Reply in
13

Support of Petition for Attorneys’ Fees. Additionally, Rodriguez provides that Mr. Madden
spent 6.7 hours on the reply, resulting in 25.2 hours spent by her attorneys on the response.
Rodriguez’s attorneys spent 924 hours on the merits of the case; in comparison, the amount of
time spent on the reply in support of her fee petition was less than 3 percent of the total hours
expended litigating the case. Still, as detailed in her fee petition, Rodriguez’s attorneys billed for
31.5 hours in connection with drafting the initial fee petition (8.5 hours for Mr. Madden, 20.5 for
Mr. Shorr, and 2.5 hours for Ms. Goldberg).10 Most of the material necessary to draft the reply
was already in the possession of Rodriguez’s attorneys; spending almost an equivalent amount of
time on the reply as the initial fee petition is excessive. See, e.g., Sughayyer v. City of Chicago,
No. 09 C 4350, 2012 WL 2359065, at *7 (N.D. Ill. June 20, 2012) (reducing hours spent on a fee
petition deemed excessive). Accordingly, the court reduces Mr. Shorr’s compensable time in
connection with drafting the reply to 12 hours and Mr. Madden’s time to 4 hours.
C.

Total Revised Lodestar Calculation

Based on the foregoing, the court's revised lodestar calculation is as follows:

John Madden

Hours
Requested
339.7

Revised
Hours
310.7

Rate
Requested
$350.00

Revised
Rate
$350.00

$108,745.00

Ylda Kopka

330.6

330.6

$250.00

$225.00

$74,385.00

Jacob Shorr

242.3

227.2

$225.00

$200.00

$45,440.00

Dara Friedman

51.1

51.1

$225.00

$200.00

$10,200.00

10

Total

This hourly figure is a rough estimate as Rodriguez’s attorneys did not detail the specific
number of hours spent solely drafting the fee petition.

14

Hours
Requested
Lindsey Goldberg
14.0
Total

II.

977.7

Revised
Hours
12.0

Rate
Requested
$225.00

931.6

Revised
Rate
$200.00

Total
$2,400.00
$241,170.00

Adjustment to the Lodestar Amount
After calculating the lodestar amount, the court must determine whether that amount

should be adjusted upward or downward. See Hensley, 461 U.S. at 430 n. 3.11 “When a plaintiff
has obtained an excellent result, [her] attorney should recover a fully compensable fee (i.e., the
modified lodestar amount), and the fee ‘should not be reduced simply because the plaintiff failed
to prevail on every contention raised in the lawsuit.’” Spegon, 175 F.3d at 557 (quoting Hensley,
461 U.S. 435). When a plaintiff, however, only achieves a partial or limited success, the court
has the discretion to reduce the lodestar amount to reflect an accurate degree of the plaintiff’s
success. Id. at 557–58. The City argues that Rodriguez only obtained a limited or partial
success and requests that the court lower the lodestar amount.
To determine the degree of Rodriguez’s success, the City requests that the court use the
three part test espoused by Justice O’Connor in her concurring opinion in Farrar v. Hobby,
which considers (1) the difference between the judgment recovered and the recovery sought; (2)
the significance of legal issues on which the plaintiff prevailed; and (3) the public purpose
11

The factors guiding this analysis include “(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 nature and length of the professional relationship with the client; and
(12) awards in similar cases.” Hensley, 461 U.S. at 430 n.3. “[T]he most critical factor is the degree of
success obtained.” Id. at 436.

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served by the litigation. Farrar v. Hobby, 506 U.S. 103, 121–22, 113 S. Ct. 566, 121 L. Ed. 2d
494 (1992) (O’Connor, J., concurring). Courts employ the Farrar test instead of the lodestar
method when the damages recovered are nominal or minimal in relation to what was sought. See
Cole v. Wodziak, 169 F.3d 486, 487–88 (7th Cir. 1999); Simpson v. Sheahan, 104 F.3d 998,
1001 (7th Cir. 1997). Here, the $99,000 settlement payment was neither nominal nor was it
minimal considering that Rodriguez recovered half of what she estimated that her claims were
potentially worth if the case proceeded to trial. Still, the Farrar test is useful in determining
whether to reduce a lodestar amount as it provides steps in gauging the degree of success a
plaintiff has obtained. See Connolly v. Nat’l Sch. Bus Serv., Inc., 177 F.3d 593, 597 (7th Cir.
1999); Ratliff v. City of Chicago, No. 10 C 739, 2013 WL 3418070, at *2 (N.D. Ill. July 8, 2013)
The City argues that the total lodestar value should be decreased by 30 percent because
(1) the court’s summary judgment ruling disposed of the ADA claim extinguishing one third of
Rodriguez’s case; (2) her success was limited in that she only recovered a settlement in the
amount of $99,000.

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A.

The Court’s Summary Judgment Ruling on the ADA Claim

The City first argues that Rodriguez is not entitled to the full lodestar amount because the
court disposed of her ADA claim on summary judgment. Rodriguez argues that her ADA claim
intertwined her with her FMLA claims in that she supported the allegations of all three claims
with the same evidence. Rodriguez further states that she removed the time entries for fees
related to her ADA claims and the only entries related to her ADA claim that remain are those
that could not be further separated.
In her amended complaint, Rodriguez alleged in two counts that the City interfered with
her rights and discriminated and retaliated against her in violation of the FMLA. In a separate
count, Rodriguez also alleged that the City violated the ADA by discriminating against her
because of her illness. The court denied the City’s motion for summary judgment with respect to
the FMLA claims. The court found that questions of fact existed regarding the effect that
Rodriguez’s decision to take FMLA leave had on the City’s decision to terminate her
employment. The court noted that the evidence was equivocal regarding the decision to
terminate Rodriguez; the City argued that her termination was performance-based but Rodriguez
cited deposition testimony from the City citing Rodriguez’s frequent absences from work as the
impetus for her firing. These inconsistencies, combined with the fact that the City terminated
Rodriguez immediately after she returned from FMLA leave, precluded summary judgment on
those claims. The court, moreover, determined that the ADA claim could not survive summary
judgment. Rodriguez based her ADA claim on the City’s alleged misperceived notion that her
illness precluded her from performing her job. The court, however, found that Rodriguez failed
to substantiate this theory and granted summary judgment with respect to the ADA claim.

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In determining whether to allow a party to recover fees in connection with claims on
which no recovery was had, the court should consider whether the unsuccessful claims were
related to the successful claims and whether the plaintiff achieved a level of success making it
appropriate to award fees in connection with unsuccessful claims. See City of Riverside v.
Rivera, 477 U.S. 561, 568–69, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1989). While different legal
theories, the facts substantiating Rodriguez’s FMLA claims and her ADA claim were the same.
See Hensley, 461 U.S. at 435. If the case had proceeded to trial, the facts underpinning the ADA
claim would have been presented to the jury in support of recovery premised on the FMLA
claims. At summary judgment, the court was able to determine that those facts did not warrant
relief under the ADA, but questions remained about their viability under the FMLA.
Reducing the award by a third premised on the dismissal of the ADA claim is not
warranted considering those facts substantiated Rodriguez’s theory of relief under her FMLA
claims. Indeed, failure to recover on every claim does not mean that the litigation as a whole
was a failure. See Hensley, 461 U.S. at 435 n.11 (rejecting a “mathematical approach comparing
the total number of issues in the case with those actually prevailed upon”). Moreover, if time
spent on an unsuccessful claim was a factor in the success of other claims, the hours expended
on interrelated claims are not unreasonable. Accordingly, the dismissal of Rodriguez’s ADA
claim on summary judgment does not warrant reducing the fee award by a percentage based on a
ratio measuring dismissed to surviving counts after summary judgment.
B.

The Parties’ Settlement Agreement

The City argues that the court should reduce Rodriguez’s fees because the relief obtained
was far from excellent or substantial in that she ultimately settled the case for less than she

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initially sought. In making a reduction based on limited success, the court should not lower the
fee request solely based on the difference between the relief Rodriguez recovered and the relief
she originally sought. See Connolly, 177 F.3d at 597. In the settlement agreement, Rodriguez
received a $99,000.00 payment exclusive of reasonable attorneys’ fees and costs, which were
two of the primary bases of her requested relief. The settlement award is not an insignificant
amount, being approximately half of what she estimated a jury might reward. Cf. Anderson v.
AB Painting & Sandblasting Inc., 578 F.3d 542, 546 (7th Cir. 2009) (“If a party prevails, and the
damages are not nominal, then Congress has already determined that the claim was worth
bringing.”).
The City last argues that Rodriguez’s FMLA claims proceeding past summary judgment
was not a victory, and the resulting settlement does not constitute an excellent result warranting
recovery of all her fees. Rodriguez contends that the court’s denial of summary judgment on the
FMLA claims and the parties’ ensuing settlement on the eve of trial provided the requisite level
of success to award all fees. While providing monetary relief for Rodriguez, the settlement
agreement did not provide the full relief requested in Rodriguez’s amended complaint and is best
viewed as a partial success.12 See Lathan v. Derwinski, No. 89 C 663, 1991 WL 148148, at *3
(N.D. Ill. July 18, 1991) (“A settlement agreement may not directly answer each and every
allegation in a complaint . . . The settlement here is more properly characterized as a partial
success.”); Lindstrom v. Levy, No. 86 C 7554, 1987 WL 13434, at *2 (N.D. Ill. June 30, 1987).

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Rodriguez also argues that the court’s denying summary judgment with regard to the City’s
after acquired evidence affirmative defense militates in favor of awarding all of her fees. The court’s
summary judgment ruling did not dispose of the defense entirely. Rather, the court deemed it a question
for the jury. The court’s ruling regarding the affirmative defense thus provides little support for
Rodriguez’s argument that she obtained an excellent result.

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Rodriguez’s lawsuit served an important public purpose in that she alleged that the City
violated her FMLA rights. Federal law protects employees who take leave based on illness from
retaliation. That Rodriguez recovered damages from a public entity based on these allegations
underscores the important public purpose that this case served. Still, Rodriguez’s recovery was
individual as she only sought and obtained money damages for herself. Cf. Hatcher v.
Consolidated City of Indianapolis, 126 F. App’x 325, 327 (7th Cir. 2005). Accordingly, the
court finds that the parties’ settlement of the claims did not constitute the type of success
warranting a full award of the lodestar amount. The court finds reducing the revised lodestar
amount by 10 percent more accurately represent the partial success obtained by Rodriguez. Cf.
Fine v. Ryan Int’l Airlines, 305 F.3d 746, 757 (7th Cir. 2002) (district court did not abuse its
discretion in reducing the lodestar by ten percent despite the fact that the plaintiff received all of
the monetary relief she could have recovered). Accordingly, the court awards attorneys’ fees in
the amount of $217,053.00.
III.

Costs and Expenses
The parties are in agreement as to the total costs in the amount of $7,011.64, and

accordingly, the court will award costs in that amount.
CONCLUSION AND ORDER
For the foregoing reasons, Rodriguez’s petition for attorneys’ fees [dkt. 222] is granted in
part and denied in part. The court awards Rodriguez attorneys’ fees in the amount of

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$217,053.00 and costs and expenses in the amount of $7,011.64, for a total fee award of
$224,064.64.
ENTER:

Dated: September 24, 2013

_________________________________
JOAN HUMPHREY LEFKOW
United States District Judge

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