Anderson v. Donahoe

Filing 161

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. The Court DENIES Anderson's motion for front pay (Docket No. 151 ). The Court ALLOWS Anderson's motion for $286,275 in attorney fees, payable to attorney James Brady (Docket No. 150 ). (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
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DIPING Y. ANDERSON,
)
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Plaintiff,
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v.
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Civil Action
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No. 14-13380-PBS
MEGAN J. BRENNAN, Postmaster
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General,
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Defendant.
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______________________________
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MEMORANDUM AND ORDER
July 24, 2017
Saris, C.J.
Following a bench trial, the Court concluded that the
Postal Service’s termination of Anderson from her position as a
Postal Police Officer (“PPO”) was retaliatory, in violation of
Title VII. Anderson v. Brennan, No. CV 14-13380-PBS, 2017 WL
1032502 (D. Mass. Mar. 16, 2017).
On the parties’ subsequent motions, the Court reconsidered
the original remedy of reinstatement and ordered both parties to
supplement the record with evidence on the appropriate amount of
front pay. Anderson v. Brennan, No. CV 14-13380-PBS, 2017 WL
2380166, at *7 (D. Mass. June 1, 2017). The Court also allowed
Anderson to file a petition for attorney fees. Id. at *8.

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Anderson now moves for front pay (Docket No. 151) and
attorney fees (Docket No. 150). The Postal Service opposes award
of any front pay and argues, in the alternative, that any front
pay award should be subject to various offsets (Docket No. 149).
The Court DENIES Anderson’s motion for front pay (Docket
No. 151). The Court ALLOWS Anderson’s motion for attorney fees
(Docket No. 150).
I.

Front Pay (Docket No. 151)
Anderson seeks front pay for the next eight years plus lost

pension benefits and increased health insurance costs, offset by
income from her alternative employment.
The Postal Service argues that Anderson is not entitled to
any front pay. It argues that it is error for the district court
to allow supplementation of the record on front pay at this
stage of the proceedings, that Anderson has been adequately
compensated by back pay and compensatory damages, that Anderson
failed to use reasonable efforts to secure alternate employment,
and that she has reached the national average retirement age for
PPOs.
The Court begins with the Postal Service’s argument that
the Court ought not allow supplementation of the record on front
pay. In Lussier v. Runyon, the district court ordered post bench
trial supplemental briefing on the amount of the disability
payments that an unlawfully discharged plaintiff would receive
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in the future. 50 F.3d 1103, 1113 (1st Cir. 1995). The district
court reduced its front pay award based on the new information.
Id. The First Circuit vacated the judgment, holding that “once
the record is closed, a district court, absent waiver or
consent, ordinarily may not receive additional factual
information of a kind not susceptible to judicial notice unless
it fully reopens the record and animates the panoply of
evidentiary rules and procedural safeguards customarily
available to litigants.” Id. at 1105–06. The First Circuit
warned that reopening the record for additional evidence
requires “the standard prophylaxis that generally obtains at
trial,” including “the right to object to evidence, the right to
question its source, relevance, and reliability, the right to
cross-examine its proponent, and the right to impeach or
contradict it.” Id. at 1115 & n.16.
There is no information in the parties’ latest filings of
which the Court can take judicial notice. If there were a legal
or standard retirement age for PPOs, that would be the kind of
information that would have aided the Court’s determination of
the front pay award while also being judicially noticeable.
However, the parties’ filings suggest that there is no such
Postal Police policy. Rather than fully reopening the
evidentiary record, as Lussier would require, the Court elects
to disregard the post-trial evidence submitted by both parties
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on the appropriate amount of front pay. Instead, the Court will
rely solely on the original bench trial record.
The trial evidence on the appropriate remedy was sparse.
The only relevant evidence proffered by Anderson was an exhibit
showing her 2012 total compensation, which was $101,987 when
accounting for the value of benefits. Anderson, 2017 WL 1032502,
at *17. The Postal Service failed to enter any evidence on
mitigation (as was its burden, id. at *17 n.15), but the Court
took as a concession Anderson’s statement in her post-trial
submission that she made a total of $82,797 from her alternative
employment over 3.3 years. Id. at *17.
There was no trial evidence on the length of time for which
it would be appropriate to award front pay. The only relevant
information available to the Court is that Anderson is sixty-two
years old. There was no trial evidence on how long Anderson
intended to remain a PPO if not for her termination, and there
was no trial evidence on what age PPOs tend to retire.1
The Court must exercise caution in determining the
appropriate amount of front pay. “An award of front pay,
constituting as it does, an estimate of what a plaintiff might
have earned had s/he been reinstated at the conclusion of trial,

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While Anderson’s post-trial submission calculated five
years of front pay, Docket No. 120-2 at 42, the Court can
discern no basis in the trial record for why five years would be
appropriate.
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is necessarily speculative.” Cummings v. Standard Register Co.,
265 F.3d 56, 66 (1st Cir. 2001) (quoting Kelley v. Airborne
Freight Corp., 140 F.3d 335, 355 (1st Cir. 1998)). “[T]he
greater the period of time upon which a front pay award is
calculated in a case involving an at-will employee the less
likely it is that the loss of future earnings can be
demonstrated with any degree of certainty or can reasonably be
attributed to the illegal conduct of the employer.” Id. (quoting
Conway v. Electro Switch Corp., 523 N.E.2d 255, 257 (Mass.
1988)). As such, “awards of front pay are discretionary.”
Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 380 (1st
Cir. 2004); see also Lussier, 50 F.3d at 1108 (“[F]ront pay,
within the employment discrimination universe, is generally
equitable in nature. . . . Title VII . . . afford[s] trial
courts wide latitude to award or withhold front pay according to
established principles of equity and the idiocratic
circumstances of each case.”).
Because Anderson had full opportunity to enter trial
evidence on the appropriate amount of front pay but failed to do
so, the Court finds that no front pay award is warranted. See
Barbour v. Merrill, 48 F.3d 1270, 1279 (D.C. Cir. 1995) (“The
plaintiff bears the initial burden of providing the district
court ‘with the essential data necessary to calculate a
reasonably certain front pay award,’ including ‘the amount of
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the proposed award, the length of time the plaintiff expects to
work for the defendant, and the applicable discount rate.’”
(quoting McKnight v. Gen. Motors Corp., 973 F.2d 1366, 1372 (7th
Cir. 1992)); see also Bruso v. United Airlines, Inc., 239 F.3d
848, 862 (7th Cir. 2001) (“If the plaintiff fails to provide
this information to the district court, the court will not abuse
its discretion if it denies his request for front pay.”).
II.

Attorney Fees (Docket No. 150)
Anderson seeks $286,275 in attorney fees. The Postal

Service has not timely objected.
The district court, at its discretion, may allow a
reasonable attorney fee to the prevailing party in a Title VII
action. Fontanillas-Lopez v. Morell Bauzá Cartagena & Dapena,
LLC, 832 F.3d 50, 59 (1st Cir. 2016) (citing 42 U.S.C. § 2000e5(k)). The district court has broad discretion to determine the
amount of reasonable fees to be awarded. Phetosomphone v.
Allison Reed Grp., Inc., 984 F.2d 4, 6 (1st Cir. 1993).
The Court employs the lodestar method, where the number of
hours reasonably expended on the litigation is multiplied by a
reasonable hourly rate. E.E.O.C. v. AutoZone, Inc., 934 F. Supp.
2d 342, 347 (D. Mass. 2013) (citing Hensley v. Eckerhart, 461
U.S. 424, 433 (1983)). To determine the hours reasonably
expended, the Court examines the contemporaneous billing
records. Docket Nos. 126, 150. The Postal Service does not point
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out any hours in those submissions that should be deducted
because they are insufficiently documented or “duplicative,
unproductive, excessive, or otherwise unnecessary.” Id. (quoting
Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.
1984)). To determine the reasonable hourly rate, the Court
considers “the prevailing market rates in the relevant
community.” Id. (quoting Andrade v. Jamestown Hous. Auth., 82
F.3d 1179, 1190 (1st Cir. 1996)). The Postal Service does not
contest the reasonableness of the $325 per hour rate charged by
Anderson’s counsel or the $90 per hour rate charged by his
paralegal.
The Court awards the requested $286,275 in attorney fees.
ORDER
The Court DENIES Anderson’s motion for front pay (Docket
No. 151).
The Court ALLOWS Anderson’s motion for $286,275 in attorney
fees, payable to attorney James Brady (Docket No. 150).
/s/ PATTI B. SARIS________________
Patti B. Saris
Chief United States District Judge

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