Clark v. ACE AFSCME Local 2250

Filing 91

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/13/2022. (kb3s, Deputy Clerk)

Case 8:17-cv-03748-GJH Document 91 Filed 12/13/22 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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KENETH CLARK,
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Plaintiff,
v.

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ACE AFSCME LOCAL 2250,

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Defendant.
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Case No.: GJH-17-3748

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MEMORANDUM OPINION
In this action, a jury returned a verdict in Plaintiff Keneth Clark’s favor against
Defendant ACE AFSCME Local 2250 (the “Union”) based on violations of 42 U.S.C. § 1981.
ECF No. 53. Pending before the Court is Plaintiff’s Motion for Attorney Fees and Costs, ECF
No. 72. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons,
Plaintiff’s Motion is granted in the amount of $68,165.38.
I.

BACKGROUND
On August 2, 2021, a jury returned a verdict in favor of Plaintiff finding that Defendant

discriminated against Plaintiff by terminating him because of his race and by subjecting him to a
hostile work environment because of his race in violation of 42 U.S.C. § 1981. ECF No. 53. The
jury awarded Plaintiff $50,000 in compensatory damages and $150,000 in punitive damages. Id.
The jury also found that Defendant failed to pay Plaintiff overtime rates for hours worked in
excess of forty per week. Id.
On May 11, 2022, after briefing on the issues of front and back pay, this Court entered
judgment in favor of Plaintiff and against the Defendant in the total amount of $438,028.34,

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consisting of $50,000 in compensatory damages, $150,000 in punitive damages, $186,929.85 in
back pay and prejudgment interest, $50,990.86 in front pay, and $107.63 in overtime pay. ECF
No. 69.
On May 26, 2022, Plaintiff filed a Motion for Attorney Fees, ECF No. 72, and on June 9,
2022, Defendant filed a response, ECF No. 75. On June 17, 2022, Plaintiff filed a Motion for
Extension of Time to File a reply to Defendant’s response, ECF No. 79, which the Court granted
and gave Plaintiff seven days from the filing of its November 14, 2022, Order to submit his
reply. ECF No. 88. Plaintiff submitted his reply to Defendant’s response on November 21, 2022.
ECF No. 89.
II.

DISCUSSION
Plaintiff submitted his Motion for Attorney Fees and Costs requesting $121,233.62 in

fees and $1,546.63 in costs, plus an additional $7,102.50 for fees associated with Plaintiff’s post
trial work. ECF No. 72; ECF No. 89 at 7. Defendant submitted a response positing that the
appropriate award is $36,869.44 in fees, and $1,472.44 in costs as Plaintiff’s hourly rates are not
reasonable and should be based on the Local Rules, and that Plaintiff’s failure to submit the
required quarterly statements warrants a reduction in fees. ECF No. 75.
When reviewing a fee petition, “a court uses the ‘lodestar method.’ The court multiplies
the number of hours reasonably expended by the attorney[] times their reasonable hourly rates.
The court then decides whether the lodestar fee should be enhanced or reduced in light of the
litigation result obtained.” Blake v. Balt. Cnty., Md., 12 F. Supp. 3d 771, 774 (D. Md. 2012)
(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Under 42 U.S.C. § 1988, “the court, in
its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs.
The purpose of [§] 1988 is to ensure effective access to the judicial process” for persons with

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civil rights grievances. Corral v. Montgomery Cnty., 91 F. Supp. 3d 702, 708 (D. Md. 2015)
(quoting Hensley, 461 U.S. at 429). “The proper calculation of an attorney's fee award involves a
three-step process. First, the court must ‘determine the lodestar figure by multiplying the number
of reasonable hours expended times a reasonable rate.’” McAfee v. Boczar, 738 F.3d 81, 88 (4th
Cir. 2013) (quoting Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)).
“Determination of the hourly rate will generally be the critical inquiry in setting the reasonable
fee, and the burden rests with the fee applicant to establish the reasonableness of a requested
rate.” Robinson v. Equifax Info. Servs., LLC, 560 F.3d at 244. “The fee applicant must produce
satisfactory specific evidence of the prevailing market rates in the relevant community for the
type of work for which he seeks an award.” Id. “The community in which the court sits is the
first place to look to in evaluating the prevailing market rate.” Grissom v. The Mills Corp., 549
F.3d 313, 321 (4th Cir. 2008). The evidence that courts in this circuit have “deemed competent to
show prevailing market rates includes affidavits of other local lawyers who are familiar both
with the skills of the fee applicants and more generally with the type of work in the relevant
community.” Boczar, 738 F.3d at 91. After the lodestar figure is determined, the Court must next
“subtract fees for hours spent on unsuccessful claims unrelated to successful ones.” Id. at 88.
“Finally, the court should award some percentage of the remaining amount, depending on the
degree of success enjoyed by the plaintiff.” Id.
A. Reasonable Hourly Rate
To support Plaintiff’s burden to establish a reasonable hourly rate, Plaintiff submits an
affidavit from his attorney, an affidavit from an attorney who has experience in the employment
discrimination sector, and the hourly rates as determined by the Laffey Matrix, which provides
attorney rates by years of experience post law school, and is “an official statement of market-

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supported reasonable attorney fee rates which was adopted, and is periodically updated, by the
United States Court of Appeals for the District of Columbia.” ECF Nos. 72-1, 72-2, 72-4;
Robinson v. Equifax Info. Servs., LLC, 560 F.3d at 244. Plaintiff’s attorney’s hourly rates as
submitted to the Court, ECF No. 72-3, appear to follow the Laffey Matrix, ranging anywhere
from $586 per hour to $919 per hour. The hourly rates for Plaintiff’s attorney’s paralegal, are
higher than the Laffey Matrix, and according to Plaintiff’s counsel, is set at $300 per hour, and
has been since 2015. ECF No. 72-1 ¶ 13. According to Plaintiff’s attorney, the rates identified by
the Laffey Matrix are reasonable because “[a]ttorneys in employment discrimination cases
customarily utilize the Laffey Matrix, together with affidavits from other counsel in a similar
practice in the same area, as evidence of the prevailing market rate,” and “Pamela Lewis Ashby,
who similarly represents plaintiffs in employment discrimination cases, also utilizes the Laff[e]y
matrix and attests that the hourly rate is reasonable based on the matrix and law supporting it.”
ECF No. 72 at 6.
However, Plaintiff has not provided evidence that the Laffey Matrix, primarily used in
Washington, D.C., is a reliable indicator for the hourly rates of attorneys in Maryland. See
Grissom, 549 F.3d at 321 (holding that “the community in which the court sits is the first place to
look in evaluating the prevailing market rate,” and that “Plaintiff offered no specific evidence
that the hourly rates sought for his attorneys coincided with the then prevailing market rates of
attorneys in the [market where the Court sat] of similar skill and for similar work, which our case
law required him to do.”). See also Robinson v. Equifax Info. Servs., LLC, 560 F.3d at 247
(reducing the hourly rate in a contingency based case because Plaintiff did not show that the
Laffey Matrix was a reliable indicator of prevailing rates of attorneys in the relevant market of
Alexandria, Virginia, (outside of Washington, D.C.) for similar work); Life Techs. Corp. v. Life

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Techs. Corp., No. RWT 10CV3527, 2012 WL 4748080, at *2 (D. Md. Oct. 2, 2012) (holding
that “[t]he Fourth Circuit and this Court have held numerous times that the Laffey Matrix is not
‘sufficient evidence of the prevailing market rate’ in this jurisdiction or other areas bordering the
District of Columbia, which tends to have higher prevailing rates.”).
To further support his argument of reasonableness, Plaintiff states that the rates identified
in Appendix B of the Local Rules are outdated as they were last updated nearly eight years ago,
or in July 2014, and that the Court is not bound by these rates. ECF No. 72 at 8. Plaintiff is
correct, as the Local Rule guidelines for hourly rates are practical guidance that are used to guide
the Court in its analysis. They permit consideration of other factors and case law, and the case
law supports deviation from its rates. The Court has also reviewed the cases cited by Plaintiff in
its Motion, and in its Reply, where courts have exercised discretion in going above the Local
Rule guidelines; however, none of the rates established by the courts in these cases were
anywhere near as high as the hourly rates that Plaintiff’s counsel uses to bill clients. The Court
further analyzes the Johnson factors to determine a reasonable rate.
To ascertain what is reasonable, the court must apply the factors set forth in Johnson v.
Georgia Highway Express Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). The Johnson factors, as
used by the Fourth Circuit are:
(1) the time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant litigation; (5) the customary fee
for like work; (6) the attorney's expectations at the outset of the litigation; (7) the
time limitations imposed by the client or circumstances; (8) the amount in
controversy and the results obtained; (9) the experience, reputation and ability of
the attorney; (10) the undesirability of the case within the legal community in which
the suit arose; (11) the nature and length of the professional relationship between
attorney and client; and (12) attorneys' fees awards in similar cases.
Robinson v. Equifax Info. Servs., LLC, 560 F.3d at 243–44.

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The Court will briefly review the most salient factors in this case. This case has been
litigated for over four years through trial and post-trial proceedings. The nature of the case (race
discrimination) is of the type where direct evidence is often lacking and thus requires more time,
effort, and skill from an attorney to piece together a strong case to convince a jury. The Local
Rules provide that for lawyers admitted to the bar for twenty years or more, a reasonable hourly
rate is $300-$475. For lawyers admitted to the bar for fifteen to nineteen years, a reasonable
hourly rate is $275-$425. For paralegals and law clerks a reasonable rate is $95-$150. The trial
occurred shortly after the courts re-opened post-pandemic. Plaintiff also notes that studies show
the majority of discrimination cases are dismissed at summary judgment. ECF No. 72 at 6–7.
Plaintiff sought back pay, front pay, compensatory damages, and punitive damages and was
awarded all the relief he sought. As of 2022, Plaintiff’s counsel has more than twenty-three years
of experience and has litigated several discrimination trials and brought several successful claims
in federal courts and in administrative tribunals.
Having taken these factors into consideration, the Court will apply an hourly rate of $450
for work billed prior to 2018 (before Plaintiff’s attorney reached twenty years of practice), and
an hourly rate of $500 for 2018 and each year thereafter, which represents a $25 dollar increase
on the higher end of each range as identified in the Local Rules; and a rate of $150 per hour for
counsel’s paralegal. These rates reflect the complexity of the case, Plaintiff’s attorney’s
experience, and encourages other attorneys to continue offering legal representation in
potentially undesirable litigation such as this one. The appropriate attorney’s fees award is
therefore $70,125.00.

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B. Subtraction of Fees
The second step in the process is where the Court “must subtract fees for hours
spent on unsuccessful claims unrelated to successful ones.” Defendant argues that
Plaintiff did not succeed on his retaliation claim as summary judgment was entered in
favor of Defendant, and therefore Plaintiff’s attorney’s hours prior to that time should be
reduced by one-third. ECF No. 75 at 11. The Court will decline to reduce Plaintiff’s
attorney’s hours on this basis as all the claims were premised on the same nucleus of
operative facts, and the Court finds that it is not possible at this juncture to separate what
was done for the retaliation claim and what was not. See Corral v. Montgomery Cnty., 91
F. Supp. at 719 (stating that it would not reduce Plaintiff’s award because “[t]he two
claims ar[o]se out of the same set of facts and legal theories. It is unrealistic (and possibly
impossible) to separate what time was spent on the Due Process claim as opposed to the
First Amendment claim.”). Because the Court finds that the retaliation claim was related
to the successful claims, the Court will not reduce Plaintiff’s attorney’s fee for this
reason.
Defendant also argues that Plaintiff’s attorney fee should be reduced for failure to
submit quarterly statements. The Local Rules provide that “counsel for a party intending
to seek fees if the party prevails shall submit to opposing counsel quarterly statements
showing the amount of time spent on the case and the total value of that time.” “Failure to
submit these statements may result in a denial or reduction of fees.” “The first such
statement is due at the end of the first quarter in which the action is filed.” Loc. R. App.
B. Guideline 1.c. Defendant requested these statements on February 18, 2020, “dating
back from the end of the first quarter when this action was filed up to the present time.”

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ECF No. 75-2. Defendant states that Plaintiff provided a statement from December 2015
through February 23, 2020 and has not provided a statement since that point. ECF No. 75
at 9. From the date of the Defendant’s request until the date of the filing of the fee
petition, May 26, 2022, nine reports should have been filed. The Court will accordingly
reduce Plaintiff’s fee by 5%. See Blake, 12 F. Supp. 3d at 779 (reducing the fee by 5%
when the attorney failed to file fourteen reports). The new fee, accounting for the 5%
reduction is $66,618.75.
Next, the Defendant argues that Plaintiff’s time spent on preparing the fee petition
is excessive, stating that Plaintiff’s opposition to Summary Judgment motion (6.3
attorney hours and 2.3 paralegal hours), and filing for relief (5.1 attorney hours), took less
time than the instant fee petition (10.1 attorney hours and 1 paralegal hour). Plaintiff
states that she does not regularly draft fee petitions, so where the other motions benefitted
from her experience and knowledge of the case law, the fee petition required more time
because she needed to engage in more research of the case law, draft an affidavit, secure
a supporting affidavit, and verify time entries. See ECF No. 89 at 5–6. Because these are
reasonable considerations, the Court will not reduce Plaintiff’s fee petition hours.
Defendant also states that the “best buy computer accessory” that Plaintiff has
listed under costs is “not unique to this case” and should be eliminated. Plaintiff states
that the computer adapter was so she could publish exhibits to the Court and the jury, and
was purchased solely for this case. The Court will not reduce the costs.
C. Degree of Success
The final step in the process is for the Court to look at the degree of success
enjoyed by the Plaintiff. The Plaintiff in this case was awarded $50,000 in compensatory

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damages, $150,000 in punitive damages, $186,929.85 in back pay and prejudgment
interest, $50,990.86 in front pay, and $107.63 in overtime pay, totaling $438,028.34.
There is no substantial disparity between the degree of success in this case and the fee
award of $66,618.75. Cf. Boczar, 738 F.3d at 94 (holding that the substantial difference
between the fee award and the success at trial undermined a fee award approximately 109
times the amount of the verdict). Accordingly, the Court will not further reduce
Plaintiff’s attorney’s fees.
III.

CONCLUSION
For these reasons, the Court finds that an award of $66,618.75 in fees and $1,546.63 in

costs are appropriate. A separate Order follows.

Date: December 13, 2022

__/s/________________________
GEORGE J. HAZEL
United States District Judge

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