Idom v. Natchez-Adams School District et al
Filing
113
ORDER granting in part and denying in part 99 Motion for Attorney Fees, etc. Signed by Honorable David C. Bramlette, III on 1/25/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
CINDY IDOM
PLAINTIFF
VS.
CIVIL ACTION NO: 5:14-cv-38(DCB)(MTP)
NATCHEZ-ADAMS SCHOOL DISTRICT, et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause came on for trial on September 14 through 18, 2015,
and the jury rendered a verdict for the plaintiff (docket entry
94).
Counsel for plaintiff filed a motion for front pay, attorney
fees and costs, prejudgment interest, and post-judgment interest
(docket entry 99), as well as a bill of costs (docket entry 98).
The Court postponed Final Judgment until the motion could be
briefed by the parties and decided by the Court.
A hearing on the
motion was held on December 2, 2015, initial briefing was completed
on December 16, 2015, and additional briefing was completed on
January 13, 2016.
Having carefully considered the motion, the
parties’ oral arguments and memoranda as well as the applicable
law, and being fully advised in the premises, the Court finds as
follows:
This Title VII employment race discrimination and state law
action alleged racial discriminatory conduct and harassment during
the
2012/2013
school
year
by
the
defendants,
Superintendent
Frederick Hill (“Hill”) and Deputy Superintendent Tanisha W. Smith
(“Smith”),
both
African-American,
on
behalf
of
the
defendant
employer, the Natchez-Adams School District (“the District”), and
alleged that the plaintiff, Cindy Idom (“Idom”), a Caucasian, was
terminated / constructively discharged from her Principal position
on July 5, 2013.
The matter was initiated on October 16, 2013, when Idom filed
a charge of discrimination with the EEOC. On or about February 12,
2014, the EEOC issued a Notice of Right to Sue.
Idom filed her
Complaint with this Court on May 14, 2014. The following causes of
action were alleged against the defendants: (1) Race Discrimination
under Title VII and § 1981; (2) Equal Protection and Due Process
rights violations under § 1983; (3) Breach of Employment Contract;
(4) Breach of District Policies and Procedures; (5) Tortious
Interference
with
Employment;
(6)
Intentional
and
Negligent
Infliction of Emotional Distress; (7) Defamation; and (8) Negligent
Hiring, Retention, Supervision and Control.
A five-day jury trial commenced on September 14, 2015, wherein
the following causes of action were submitted to the jury: (1)
Breach of Employment Contract; (2) Race Discrimination under Title
VII and § 1981; (3) Equal Protection violation under § 1983; and
(4) Intentional Infliction of Emotional Distress.
On September 18, 2015, the jury rendered its verdict and found
in favor of Idom against the Defendants for all causes of action
submitted
to
the
jury,
and
awarded
damages
as
follows:
(a)
$84,650.00 against the District for breach of employment contract;
2
(b)
$271,737.00
against
the
District
for
Title
VII
race
discrimination, including $171,737.00 for back pay (lost wages and
benefits from July 5, 2013 until the date of the verdict, inclusive
of
the
amount
awarded
for
one
year
breach
of
contract)
and
$100,000.00 for compensatory damages (including mental anguish and
emotional distress injuries); (c) $271,737.00 against the District,
and $0.00 against Hill (individually), for §1983 Equal Protection
rights violation (inclusive of back pay and emotional damages
awarded); and (d) $75,000.00 against Hill (individually), and
$25,000.00 against Smith (individually) for intentional infliction
of emotional distress.
The total monetary damages awarded to Idom
by the jury was in the amount of $371,737.00.1
Idom presently seeks an award for attorney fees, costs,
prejudgment
and
post-judgment
interest,
and
front
pay.
The
defendants oppose the amounts sought for attorney fees and costs,
oppose the rate sought for an award of prejudgment interest, oppose
any award for post-judgment interest, and oppose any award for
front pay.
I. Attorney Fees
As the prevailing party, Idom seeks an award of reasonable
attorney fees pursuant to 42 U.S.C. § 2000e-5(k) and 42 U.S.C. §
1
To prevent double counting, the damages awarded for breach of
employment contract and for violation of §1983 Equal Protection rights were
subsumed within the $271,737.00 award for Title VII race discrimination.
3
1988, in the total amount of $245,340.00.
For the reasons set
forth below, the Court awards Idom $175,210.00 in reasonable
attorney fees.
When determining a statutory request for attorney fees under
Title VII, federal courts use the “lodestar” method, which is “the
number of hours reasonably expended on the litigation multiplied by
a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). “The party seeking an award of fees should submit evidence
supporting the hours worked and rates claimed.”
“[A]fter
calculating
the
lodestar,
a
Id.
district
court
may
enhance or decrease the amount of attorney’s fees based on the
relative weights of the twelve factors set forth in [Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974)].”
Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir.
2013) (quotation omitted).
The Johnson factors include:
(1) the time and labor required;
(2) the novelty and difficulty of the issues in the case;
(3) the skill requisite to perform the legal services
properly;
(4) the preclusion of other employment by the attorney
due to acceptance of the case;
(5) the customary fee charged for those services in the
relevant community;
(6) whether the fee is fixed or contingent;
(7) time limitations
circumstances;
imposed
4
by
the
client
or
the
(8) the amount involved and the results obtained;
(9) the experience,
attorneys;
reputation,
and
ability
of
the
(10) the undesirability of the case;
(11) the nature and length of
relationship with the client; and
the
professional
(12) awards in similar cases.
Id. at 502 n.7 (citing Johnson, 488 F.2d at 717-19).
The most
important factor in civil rights cases is the degree of success or
“results obtained.”
Hensley, 461 U.S. at 434. The Supreme Court
has cautioned, however, that “the lodestar method yields a fee that
is presumptively sufficient.” Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 552 (2010).
The most useful starting point for determining the
amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate.
This calculation provides an
objective basis on which to make an initial estimate of
the value of a lawyer’s services. The party seeking an
award of fees should submit evidence supporting the hours
worked and rates claimed. Where the documentation of
hours is inadequate, the district court may reduce the
award accordingly.
The district court also should exclude from this
initial fee calculation hours that were not “reasonably
expended.” S.Rep. No. 94–1011, p. 6 (1976). Cases may
be overstaffed, and the skill and experience of lawyers
vary widely. Counsel for the prevailing party should
make a good faith effort to exclude from a fee request
hours that are excessive, redundant, or otherwise
unnecessary, just as a lawyer in private practice
ethically is obligated to exclude such hours from his fee
submission. “In the private sector, ‘billing judgment’
is an important component in fee setting. It is no less
important here. Hours that are not properly billed to
one's client also are not properly billed to one’s
5
adversary pursuant to statutory authority.” Copeland v.
Marshall, 205 641 F.2d 880, 891 (1980)(en banc)(emphasis
in original).
Hensley, 461 U.S. at 433-34 (1983).
Idom submitted affidavits by her counsel contending that
attorneys Ken R. Adcock (with 34 years of experience) and Mark D.
Morrison (with 24 years experience) should receive an hourly rate
of $300 per hour, that associate William C. Ivison (with 3 years of
experience) should receive an hourly rate of $200 per hour, and
that paralegal work should receive an hourly rate of $100 per hour.
Idom seeks a total of 1,028 billable hours.
She also seeks an
additional $10,000 in attorney fees in connection with the attorney
fee application.
The defendants contend that the requested hourly rates are
excessive, and submit an affidavit by local counsel suggesting that
the hourly rates should be reduced to $225 per hour for Mr. Adcock,
$125 per hour for Mr. Ivison, $90 per hour for paralegal work, and
that all of Mr. Morrison’s entries should be eliminated.
The
defendants also contend that much of Idom’s counsel’s time is
excessive, duplicative and unbillable.
They seek reduced numbers
of billable hours as follows: 264.3 hours for Mr. Adcock, 291.2
hours for Mr. Ivison, 6.7 hours for paralegal time, and suggest
that a reasonable fee award would be $96,470.50.
The “reasonable hourly rate” for the lodestar calculation is
“calculated
according
to
the
prevailing
6
market
rates
in
the
relevant community” and must be “in line with those prevailing in
the
community
for
similar
services
by
lawyers
of
reasonably
comparable skill, experience and reputation.’” McClain v. Lufkin
Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011)(citation omitted).
Thus, the Fifth Circuit has interpreted rates “‘prevailing in the
community’ to mean what it says,” and has “required district courts
to consider the customary fee for similar work ‘in the community.’”
Id. (citations omitted).
“Generally, the reasonable hourly rate
for a particular community is established though affidavits of
other attorneys practicing there.”
Tollett v. City of Kemah, 285
F.3d 357, 368 (5th Cir. 2002).
This Court therefore finds that the reasonable hourly rates to
be considered will be those of attorneys within the Western
Division of the U.S. District Court for the Southern District of
Mississippi.
As stated at the hearing, the Court finds that Mr.
Ivison’s requested hourly rate of $200 an hour is excessive for a
lawyer with 3 or 4 years experience, and finds that $175 an hour is
reasonable.
The Court further finds that Mr. Adcock’s and Mr.
Morrison’s requested rate of $300.00/hour, while not outrageous for
attorneys in Jackson, Mississippi, is excessive in the Western
Division, and finds that $275 an hour is a reasonable hourly rate
for these attorneys.
The Court agrees with the plaintiff that the
requested hourly rate of $100.00/hour for paralegal entries is
reasonable.
7
The “hours reasonably expended” for the lodestar calculation
should exclude hours that were not “reasonably expended,” including
“hours that are excessive, redundant, or otherwise unnecessary.”
Hensley, 431 U.S. at 434.
Further, in determining the number of
“hours reasonably expended,” the Court must consider whether the
fee applicant “exercised billing judgment,” which is shown by the
attorney writing off hours that are “unproductive, excessive, or
redundant.”
Saizan v. Delta Concrete Products Co., 448 F.3d 795,
799 (5th Cir. 2006).
However, the Court should not act as “green-
eyeshade accountants”, as “[t]he essential goal in shifting fees
(to either party) is to do rough justice, not to achieve auditing
perfection.”
Fox v. Vice, 131 S. Ct. 2205, 2216 (2011).
There are several relevant Johnson factors that the Court
considers in determining a fair and reasonable attorney fee award.
This Title VII employment discrimination action was more difficult
and complicated than a normal civil lawsuit.
The legal issues in
this matter included federal constitutional and statutory race
discrimination law, state statutory education employment law, and
common law contract issues.
This required a fair amount of skill
from the attorneys on both sides, and the Court finds that Idom’s
attorneys are good attorneys who performed well in litigating this
case from its inception to the present.
Idom obtained excellent results and was successful at trial.
She obtained a jury verdict in her favor on all claims that were
8
submitted to the jury, and the jury returned a verdict for all
requested damages.
in
trial
The case required a substantial amount of time
preparation
instructions.
and
in
preparing
complicated
jury
There was an extensive amount of research conducted
in this case; however, not many depositions were conducted.
Upon due consideration of the Johnson factors, the Court finds
that the 707 hours requested by Mr. Ivison are excessive because
there was duplication of work with other attorneys and work that
the Court considers as clerical.
The Court finds 480 hours to be
a reasonable amount of hours expended by Mr. Ivison; therefore, the
award for Mr. Ivison’s fees shall be 480 hours times $175.00/hour,
equaling $84,000.00.
The Court also finds that 306.2 hours
expended by Mr. Adcock and 3 hours expended by Mr. Morrison are
reasonable; therefore, the award for Mr. Adcock’s fees shall be
306.2 hours times $275.00/hour, equaling $84,205.00, and the award
for Mr. Morrison’s fees shall be 3 hours times $275.00/hour,
equaling $825.00. The Court finds that the paralegal time spent of
11.8 hours is reasonable, and the Court grants the $1,180.00 in
fees requested for paralegal entries.
At the hearing, counsel for Idom requested an additional
$10,000.00 for attorney fees in connection with the attorney fee
application. The court finds that $5,000.00 is a sufficient sum to
cover the present motion (including the attorney fee application),
oral argument on the motion, post-hearing briefing and supplemental
9
briefing, and the submission of proposed findings of fact and
conclusions of law to the Court.
Accordingly, the Court awards Idom $175,210.00 in reasonable
attorney fees reasonably expended by her counsel in this case.
II. Costs
Idom seeks all costs and expenses reasonably incurred by her
attorneys in the course of litigation, in the total amount of
$12,474.27.
These costs are divided into three categories: (1)
taxable costs, (2) non-taxable costs, and (3) expert costs.
Court will address each category of costs separately.
The
For the
reasons stated below, the Court awards Idom all requested costs and
expenses in the amount of $12,474.27.
A. Taxable Costs
Idom seeks the recovery of $4,474.25 in “taxable” costs under
Fed.R.Civ.P. 54(d)(1) and 28 U.S.C. § 1920, through a separatelysubmitted Bill of Costs (docket entry 98).
Courts are given wide
discretion in determining taxable costs to award, but are limited
to awarding the costs specifically enumerated in 28 U.S.C. § 1920.
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445
(1987).
Under § 1920, a court may tax the following costs:
(1) Fees of the clerk and marshal; (2) Fees for printed
or electronically recorded transcripts necessarily
obtained for use in the case; (3) Fees and disbursements
for printing and witnesses; (4) Fees for exemplification
and the costs of making copies of any materials where the
copies are necessarily obtained for use in the case; (5)
Docket fees under section 1923 of this title; (6)
Compensation of court appointed experts, compensation of
10
interpreters, and salaries, fees, expenses, and costs of
special interpretation services under section 1828 of
this title.
28 U.S.C. § 1920.
Idom’s counsel has submitted an affidavit setting forth the
taxable costs alleged to be reasonable and necessary to litigate
this case, supported by an attached statement and itemization of
all costs and expenses actually incurred by Idom’s counsel in this
case.
The taxable costs sought include (a) $2,440.50 in fees for
deposition transcripts, (b) $400.00 in filing fees for filing the
Compliant, (c) $175.00 in service of process fees by sheriffs for
deposition and trial subpoenas to witnesses, (d) $483.50 in trial
witness fees, and (e) $975.25 in photocopy costs (3,901 pages at
$.25/page).
The defendants do not dispute that Idom is generally
entitled to recover taxable costs, and do not dispute the amount
and support for the requested taxable costs for filing fees,
service of process fees, and trial witness fees. Therefore, the
Court will award Idom $400.00 for filing fees, $175.00 for service
of process fees, and $483.50 for witness fees, as taxable costs
under 28 U.S.C. § 1920.
The defendants do dispute the amount and validity of Idom’s
requested taxable costs associated with deposition transcripts and
photocopies. Regarding deposition transcript costs, the defendants
claim
that
Idom
fails
to
prove
that
“necessarily obtained for use in the case.”
11
the
transcripts
were
Deposition costs are
taxable and recoverable as expenses where “a deposition could
reasonably be expected to be used for trial preparation,” and costs
for deposition transcripts are recoverable if “necessarily obtained
for use in the case.”
Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th
Cir. 1991)(citations omitted).
“Whether a deposition or copy was
necessarily obtained for use in the case is a factual determination
to be made by the district court[,]” and the court is afforded
“great latitude in this determination.”
omitted).
attached
Id. at 285-86 (footnotes
Idom’s deposition transcript costs are supported by an
itemization
of
the
taxable
costs
incurred,
which
particularly describes the amount and necessity of the deposition
transcript costs Idom seeks to recover.
The Court finds that the
deposition transcripts were necessarily obtained for use in this
case by Idom’s counsel. The Court also notes that Idom’s attorneys
used the deposition transcripts for impeachment purposes in the
cross examination of defendants Hill and Smith.
Accordingly, the
Court will award Idom $2,440.50 for depositions transcripts as
taxable costs under 28 U.S.C. § 1920.
Regarding plaintiff’s photocopy costs, the defendants contend
that these are not adequately supported and that the rate used by
Idom of $.25/page should be reduced to $.10/page.
Copying costs
are “subject to the same standard as that of copying depositions:
reproductions necessarily obtained for use in the case are included
within
taxable
costs,
provided
12
that
the
prevailing
party
demonstrates that necessity.” Fogleman, 920 F.2d at 286 (citations
omitted).
“This
is
usually
done
by
submitting
an
affidavit
attesting that the amount claimed is correct and that the services
giving rise to the costs were actually and necessarily performed.”
Kmart Corp. v. Kroger Co., 2014 WL 3510488, *8 (N.D. Miss. July 14,
2014)(citing 28 U.S.C. § 1924).
In this case, Idom’s costs for
photocopies are supported by her counsel’s submitted affidavit
attesting that the amounts claimed for photocopy charges are
correct and that the photocopies were actually and necessarily
incurred in the litigation of this case.
The photocopy costs are
further supported by an attached firm invoice and an attached
itemization of the taxable costs which describes the date, amount
and reason for the photocopies incurred.
The photocopies are
categorized as being for use in discovery production, depositions,
trial, or filings in this case.
The Court is of the opinion that
the photocopy costs are properly supported, and as a result are
recoverable under 28 U.S.C. § 1920.
Finally, the Court accepts the firm’s rate of $.25/page for
copying costs as a reasonable rate that is customarily charged and
actually incurred by the law firm.
Accordingly, the Court will
award Idom $975.25 in photocopy costs as taxable costs under 28
U.S.C. § 1920.
In sum, the Court is of the opinion that Idom’s
Bill of Costs (docket entry 98) is well-taken and should be
granted, and awards Idom the full recovery of $4,474.25 in taxable
13
costs pursuant to 28 U.S.C. § 1920.
B. Non-Taxable Costs
Idom seeks non-taxable and non-expert costs, pursuant to 42
U.S.C. § 2000e-5(k), in the amount of $4,100.02.
“In Title VII
cases, a district court has an additional source of authority for
applying attorney’s fees and costs, 42 U.S.C. § 2000e-5(k).”
Mota
v. Univ. of Texas Houston Health Sci. Ctr., 261 F.3d 512, 529 (5th
Cir. 2001).
The Fifth Circuit “has interpreted the attorney’s fee
allowed by Section 2000e-5(k) to include reasonable out-of-pocket
expenses incurred by the attorney which are normally charged to a
fee-paying client, in the course of providing legal services, such
as
postage,
photocopying,
paralegal
services,
long
distance
telephone charges, and travel costs.” Id. (internal quotations and
citation omitted). Idom seeks the following out-of-pocket expenses
incurred by her attorneys in the course of their representation in
this case: (a) $120.45 for obtaining medical records, (b) $3,905.84
in mileage, meals and travel costs, (c) $24.59 in FedEx courier
fees, and (d) $49.14 in postage.
The defendants object to certain
amounts of the requested costs as being unreasonable.
It is the
opinion of the Court, however, that the requested non-taxable costs
are reasonable and necessarily incurred by Idom’s attorneys during
litigation, and are sufficiently supported by an affidavit of
Idom’s counsel and the attached firm billing records. Accordingly,
the Court exercises its discretion and awards Idom $4,100.02 in
14
non-taxable costs, pursuant to 42 U.S.C. § 2000e-5(k).
C. Expert Costs
Idom seeks the recovery of $3,900.00 in expert fees, pursuant
to 42 U.S.C. § 2000e-5(k), reasonably incurred for services of
Idom’s
economics
expert,
Dr.
Gerald
Lee.
According
to
the
affidavit of Idom’s counsel, Dr. Lee’s services and opinions were
necessary to prosecute the plaintiff’s case, and included the
expert’s calculations and testimony at trial concerning Idom’s
claims for lost wages, lost retirement benefits, and prejudgment
interest.
Most of these expert fees and costs are not objected to
by the defendants.
The defendants do, however, object to that portion of the
expert fees, in the amount of $1,200.00, which compensate Dr. Lee
for his attendance at trial.
The defendants claim that the
requested amount should be reduced to a $40.00 attendance fee under
28 U.S.C. § 1821.
For the reasons stated below, the Court does not
agree with the defendants’ contention, and will award Idom the full
amount of $3,900.00 in expert fees.
Concerning expert witness trial fees, the Supreme Court has
held “that when a prevailing party seeks reimbursement for fees
paid to its own expert witnesses, a federal court is bound by the
limit of § 1821(b), absent contract or explicit statutory authority
to the contrary.”
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482
U.S. 437, 438 (1987).
Since Crawford was decided, the wording of
15
the applicable attorney fee statutes has been changed, and both 42
U.S.C. § 1988 and Title VII explicitly allow an award for all
expert fees to the prevailing party.2
and
expenses
are
taxable
to
the
Accordingly, all expert fees
losing
party
in
employment
discrimination cases under § 1988 and 42 U.S.C. § 2000e–5(k),
including the expert’s trial attendance costs which may exceed the
daily fees paid to witnesses under § 1821(b). Alexander v. City of
Jackson, Miss., 2011 WL 1059293, *16-17 (S.D. Miss. Mar. 21, 2011).
The Court, in its discretion, awards Idom all requested expert fees
(including trial attendance costs) in the amount of $3,900.00.
III. Prejudgment Interest
Idom seeks prejudgment interest at 8% per annum, compounded
annually, on all monetary damages awarded by the jury, particularly
(a) the $271,737.00 Title VII award, to accrue from July 5, 2013
(the date of Idom’s discharge) until entry of final judgment; and
(b) the $100,000.00 state-law intentional infliction of emotional
distress award, to accrue from May 14, 2014 (the date the Complaint
was filed) until entry of final judgment.
The defendants oppose the rate of interest, and suggest that
2
42 U.S.C. § 1988 provides, in subsection (c), that “[i]n awarding
attorney’s fee under subsection (b) of this section ..., the court, in its
discretion, may include expert fees as part of the attorney’s fee.” In
addition, 42 U.S.C. § 2000e-5(k) provides that “[i]n any action or proceeding
under this subchapter the court, in its discretion, may allow the prevailing
party, other than the Commission or the United States, a reasonable attorney’s
fee (including expert fees) as part of the costs ....”
16
the current federal prime rate of interest3 should be used.
The
defendants further oppose granting prejudgment interest on Idom’s
state law emotional damages award of $100,000.00.
Pursuant to 42 U.S.C. § 2000e-5(g), Idom is entitled to
prejudgment interest on her Title VII jury award.
See Loeffler v.
Frank, 486 U.S. 549, 564 (1988). “District courts generally should
calculate interest on back pay and past damages [beginning] on the
date of the adverse employment action.”
Thomas v. Texas Dep’t of
Criminal Justice, 297 F.3d 361, 372 (5th Cir. 2002).
“[p]rejudgment
including
past
interest
emotional
should
apply
injuries.”
to
Id.
all
Furthermore,
past
“The
injuries,
purpose
of
prejudgment interest is to provide parties with compensation for
the detention of money overdue ... [that] compensates for the time
value of money, and thus is often necessary for full compensation.”
In re Guardianship of Duckett, 991 So. 2d 1165, 1182 (Miss. 2008)
(quotations and citations omitted).
Accordingly, “it is necessary
to compound prejudgment interest in order to compensate for the
time value of the money due as damages from the date the claim
arises to the date the judgment is entered.”
Id., at 1183.
The Court must first decide the amount of damages awarded
under Title VII to which prejudgment interest is applied.
The
parties do not dispute that prejudgment interest applies to Idom’s
Title VII award of $171,737.00 in back pay (past lost wages and
3
As of January 15, 2016, the federal prime rate is 3.50%.
17
benefits).
As for the jury’s award to Idom of $100,000.00 in compensatory
damages (including past mental anguish and emotional distress), it
would seem that plaintiff and defendants agree that “[p]rejudgment
interest
should
apply
emotional injuries.”
to
all
past
injuries,
including
past
Defendant’s Response (docket entry 108), p.
3 (citing Thomas v. Texas Dept. of Crim. Justice, 297 F.3d 361, 372
(5th Cir. 2002)(also cited by plaintiff).
See also Dinet v. Hydril
Co., 2006 WL 3904991, *13 (E.D. La. Nov. 22, 2006)(following
Thomas).
The parties dispute whether prejudgment interest also applies
to Idom’s Title VII award of $100,000.00 in compensatory damages
(including past mental anguish and emotional distress).
In Thomas
v. Texas Dep't of Criminal Justice, 297 F.3d 361 (5th Cir. 2002),
the plaintiff was awarded back pay and compensatory (emotional
injuries) damages under Title VII for employment discrimination,
and the parties disputed whether prejudgment interest should apply
to the entire amount.
In affirming that prejudgment interest
applies to all past injuries awarded under Title VII, including
back pay and past compensatory damages for emotional injuries, the
Fifth Circuit held:
Prejudgment interest should apply to all past injuries,
including past emotional injuries. Courts should award
prejudgment interest whenever a certain sum is involved.
Refusing to award prejudgment interest ignores the time
value of money and fails to make the plaintiff whole. ...
Because the jury found that the [plaintiff] suffered past
18
emotional injuries, the district court was compelled to
award prejudgment interest on those past injuries.
Id. at 372.
In this case, the jury found that Idom suffered past injuries
under Title VII, and awarded her $171,737.00 in back pay and
$100,000.00 in compensatory damages (for past emotional injuries).
Accordingly,
following
Thomas,
the
Court
awards
prejudgment
interest to apply to all past injuries awarded under Title VII in
the amount of $271,737.00.
The Court requested the parties to brief the effect, if any,
that the Mississippi Tort Claims Act (“MTCA”), specifically Miss.
Code Ann.
and
11-46-15, might have on awards of pre-judgment interest
attorney
fees
in
connection
with
torts
of
intentional
infliction of emotional distress committed by School District
employees Hill and Smith.
The relevant portion of the statute
states:
No judgment against a governmental entity or its employee
for any act or omission for which immunity is waived
under this chapter shall include an award for exemplary
or punitive damages or for interest prior to judgment, or
an award of attorney’s fees unless attorney’s fees are
specifically authorized by law.
Miss. Code Ann. 11-46-15(2)(emphasis added).
The defendants acknowledge that torts which require proof of
malice as an essential element are excluded from the MTCA under
this section.
See Zumwalt v. Jones County Bd. of Supervisors, 19
So.3d 672, 688-89 (Miss. 2009)(claim of tortuous interference with
19
business contracts requires proof of malice and is, therefore, not
subject to the MTCA).
The defendants argue, however, that there
was no finding of malice by the jury since the jury verdict form
did not include a malice finding or component.
The defendants
contend that without a finding of malice the plaintiff is not
entitled to pre-judgment interest nor to attorney fees on the
intentional infliction of emotional distress claim, and, moreover,
is not entitled to a verdict on the intentional infliction of
emotional distress claim itself since it requires a finding of
malice.
The plaintiff points out that the jury instructions define
malice and instruct the jurors that malice is a necessary element
of Idom’s intentional infliction of emotional distress claim.
Jury Instruction No. 12.
See
The Court finds that although the Jury
Verdict does not repeat the instructions concerning malice, the
instructions themselves required a finding of malice before the
jury could find for the plaintiff on the intentional infliction of
emotional distress claim.
Therefore, because the jury found
malice, the Court finds that Miss. Code Ann. 11-46-15(2) does not
apply, and the plaintiff is entitled to both pre-judgement interest
and attorney fees on this claim.
The Court must also decide the rate of prejudgment interest.
The trial court has discretion in the decision to award prejudgment
interest on Title VII awards.
Sellers v. Delgado Cmty. Coll., 839
20
F.2d 1132, 1140 (5th Cir. 1988).
The Fifth Circuit also advises
that where a federal statute does not establish the rate of
prejudgment
interest,
Mississippi
state
law
court’s discretion in determining the rate.
should
guide
the
See Hansen v. Cont’l
Ins. Co., 940 F.2d 971, 984 (5th Cir. 1991), abrogated on other
grounds by CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011); Perez v.
Bruister, 54 F.Supp.3d 629, 680 (S.D. Miss. 2014).
Similarly, the Fifth Circuit has held that the Federal rate
set forth in the post-judgment interest statute, 28 U.S.C. §1961
(a), does not govern rates set on prejudgment interest awards.
Hansen, 940 F.2d at 984; see also Boston Old Colony Ins. Co. v.
Tiner Associates Inc., 288 F.3d 222, 234 (5th Cir. 2002)(holding
that “[u]nder 28 U.S.C. §1961(a), in diversity cases, post-judgment
interest is calculated at the federal rate, while pre-judgment
interest is calculated under state law.”).
Mississippi
Code
Annotated
section
75-17-7
governs
the
application of interest rates to judgments. That section provides:
All judgments or decrees founded on any sale or contract
shall bear interest at the same rate as the contract
evidencing the debt on which the judgment or decree was
rendered.
All other judgments or decrees shall bear
interest at a per annum rate set by the judge hearing the
complaint from a date determined by such judge to be fair
but in no event prior to the filing of the complaint.
Miss. Code Ann. § 75-17-7.
Prior to its amendment in 1989, section 75-17-7 required a
judgment interest rate of 8%, but now the rate is left to the trial
21
judge’s discretion.
Mississippi Baptist Health Sys., Inc. v.
Kelly, 88 So.3d 769, 782-83 (Miss.Ct.App. 2011).4
therefore
exercise
its
discretion
in
favor
The Court shall
of
awarding
the
plaintiff the federal prime rate, currently 3.5%, because it is a
readily ascertainable figure which provides a reasonable estimate
of the interest rate necessary to compensate the plaintiff for the
loss of use of her money.
See Gorenstein Enterprises, Inc. v.
Quality Care-USA, Inc., 874 F.2d 431, 436-37 (7th Cir. 1989)(cited
in Alberti v. Klevenhagen, 896 F.2d 927, 938 (5th Cir. 1990)).
The
Fifth Circuit has also stated that “the cost of borrowing money,
which the prime rate represents, is an appropriate prejudgment
interest rate.” Alberti, 896 F.2d at 938 (citing In re M/V Vulcan,
553 F.2d 489, 491 (5th Cir.), cert. denied sub nom., Sabine Towing
and Transportation Co. v. Zapata Ugland Drilling Inc., 434 U.S. 855
(1977)).
The
Court
shall
award
Idom
prejudgment
interest
to
be
calculated at 3.5% per annum, compounded annually, on the back pay
and emotional damages award of $271,737.00, beginning July 5, 2013
until the date the Final Judgment is entered in this cause.
Idom’s request for prejudgment interest on her state-law award
for intentional infliction of emotional distress is made pursuant
to Miss. Code Ann. § 75-17-7, which states that state-law judgments
4
The plaintiff, in her proposed findings of fact and conclusions of
law, quoted the former version of the statute, not the current version.
22
“shall bear interest at a per annum rate set by the judge hearing
the complaint from a date determined by such judge to be fair but
in no event prior to the filing of the complaint.”
Id.
The trial
court has discretion whether to award prejudgment interest under
Miss. Code Ann. § 75-17-7.
Arcadia Farms P’ship v. Audubon Ins.
Co.,77 So.3d 100, 105 (Miss. 2012).
The Court exercises its
discretion to deny prejudgment interest on the damages awarded for
Idom’s state law award of $100,000.00 for intentional infliction of
emotional distress.
IV. Front Pay
Idom seeks an award for front pay, or future lost wages and
benefits, pursuant to 42 U.S.C. § 2000e-5, in the total amount of
$193,227.00, including (a) 2 years of future lost wages and
benefits
in
the
amount
of
$170,634.00;
and
(b)
lost
future
retirement benefits from the Public Employees’ Retirement System of
Mississippi (“PERS”) in the amount of $22,593.00.
Defendants
object to the front pay award in its entirety, arguing that Idom
was a year-to-year contract employee and had no expectation of
contract renewal beyond the terms of her contract. For the reasons
set forth below, the Court will award Idom a front pay award in the
total amount of $108,495.00.
Under 42 U.S.C. § 2000e-5, front pay “is a form of equitable
relief contemplated by Title VII and is intended to compensate the
plaintiff for lost future wages and benefits.”
23
Mota, 261 F.3d at
526 (quotations and footnote omitted). “[F]ront pay may be awarded
if reinstatement is not feasible where a hostile relationship
exists between the employer and the plaintiff.”
and footnote omitted).
Id. (quotations
If awarded in lieu of reinstatement, front
pay covers lost compensation and benefits during the period after
the date the final judgment is entered.
Pollard v. E.I. du Pont de
Nemours & Co., 532 U.S. 843, 846 (2001).
Front pay is not a punitive award, but rather “is an equitable
remedy and therefore the court, not the jury, determines the amount
of the award.”
Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869,
870 (5th Cir. 1991)(citation omitted).
“Calculations of front pay
cannot
they
be
totally
accurate
because
necessarily speculative in nature.”
are
prospective
Id. (citation omitted).
and
“The
courts must employ intelligent guesswork to arrive at the best
answer.”
Id. (citation omitted).
In determining the front pay
award, the court may consider non-discriminatory factors applicable
to the facts, such as:
(1) the length of prior employment,
(2) the permanency of the position held,
(3) the nature of work,
(4) the age and physical condition of the employee,
(5) possible consolidation of jobs and
(6) the myriad other non-discriminatory factors which could
validly affect the possible ... post-discharge employment
relationship.
24
Id. at 871.
In situations involving race discrimination, reinstatement to
the former position is usually the preferred remedy. Giles v. Gen.
Elect. Co., 245 F.3d 474, 489 n.27 (5th Cir. 2001).
However, this
Court finds that reinstatement of Idom to her former Principal
position is not feasible in this case.
The testimony and evidence
at trial revealed that the employment relationship was in a state
of acrimony, and that there was an abusive and hostile work
environment. For this reason, reinstatement would not be feasible.
The Court will therefore consider a front pay award for Idom’s
future lost wages and benefits from the date final judgment is
entered.
In awarding a front pay award for future lost wages and
benefits, the Court first considers applicable factors to determine
an appropriate front pay award.
As to the nature and length of
Idom’s prior employment, she had worked as a teacher or Principal
in public schools for approximately 40 years, and had worked
fourteen years in the District. She had been the Principal at West
Elementary
since
2002,
and
had
employment record and evaluations.
an
unblemished
and
excellent
Idom was a distinguished and
qualified educator and Principal, and received many accolades and
awards for her past work.
As to Idom’s physical condition, the
Court finds nothing in the record to show that she would be
prevented from working because of any physical malady.
25
The Court
finds that she was willing and able to continue working in the
District, and Idom testified that she intended to retire at age 65,
which would have been after the 2016/2017 school year.
In determining the appropriateness of the extent, if any, of
a front pay award, the Court must also consider the plaintiff’s
reasonable efforts to mitigate damages by seeking substantially
equivalent employment.
Giles, 245 F.3d at 489.
Consequently, the
extent of the front pay award should reflect potential future
earnings the plaintiff could reasonably be expected to make with
future substantially equivalent employment. Jackson v. Host Int’l,
Inc., 426 F. App’x 215, 223 (5th Cir. 2011)(citing Giles, 245 F.3d
at 489).
In this case, the Court finds that Idom reasonably
mitigated her damages by exercising reasonable diligence to obtain
substantially
employment.
award,
the
equivalent
work,
but
was
unable
to
find
such
However, in the context of determining a front pay
issue
to
consider
is
whether
or
reasonably be expected to get future employment.
qualified educator and administrator.
not
Idom
could
She is a well
With reasonable effort, she
should be able or should have been able to get employment within a
year of the date of the judgment.
In making this decision, the Court recognizes the defendants’
argument that Idom was a year-to-year contract employee, and that
there was no guarantee that Idom would get additional years of
employment.
Although Idom may have been subject to not having her
26
employment contract renewed in the future, the Court finds that one
year of future lost wages is reasonable.
Front pay awards are
speculative by their very nature, and the Court must employ
intelligent guesswork to arrive at an award by looking at all the
circumstances.
Moreover,
the
Court
has
found
“no
authority
suggesting that a Title VII plaintiff is precluded from proving the
possibility
of
additional
one-year
contracts
discriminatory termination of employment.”
but
for
the
Jackson-Hall v. Moss
Point Sch. Dist., 2012 WL 1098524, *6 (S.D. Miss. Apr. 2, 2012)
(denying a motion in limine attempting to limit the plaintiffeducator’s front and back pay award to her one-year contract of
employment).
The jury awarded Idom two years of back pay, for the 2013/2014
and 2014/2015 school years.
Based on the considerations and
factors described above, the Court awards one year of future lost
wages for Idom’s salary at her former Principal position for the
2015/2016 school year.
The Court notes that Idom’s economics
expert, Dr. Gerald Lee, has calculated the present value of Idom’s
salary for the 2015/2016 school year to be $85,902.00, and his
report was introduced into evidence at trial.
The Court shall
grant Idom’s Motion as to front pay for one year in the amount of
$85,902.00.
The plaintiff also seeks compensation for loss of future PERS
retirement benefits as a result of the Title VII violations.
27
Idom
seeks lost PERS retirement benefits as a part of front pay,
separate from, and in addition to, her loss of wages.
Idom
testified that she intended to retire at age 65, but due to the
subject termination and constructive discharge from her Principal
position by the defendants on July 5, 2013 (when she was 61 years
old), she was forced to take early retirement from PERS at age 61
because she no longer had any School District income, and that she
then
began
receiving
retirement
benefits.
According
to
the
testimony and report of Dr. Lee, Idom’s expert economist, the total
net present value of Idom’s PERS benefits beginning at age 61 until
her life expectancy (discounted to present value) is calculated to
be $479,614.00. Had Idom been allowed to continue working with the
District until her intended retirement age of 65, and had she
during those extra years been allowed to continually contribute
toward her PERS retirement plan, Dr. Lee calculates the total net
present value of Idom’s PERS benefits beginning at age 65 until her
life expectancy (discounted to present value) to be $502,207.00.
Dr. Lee opines that the difference between the two net present
values of Idom’s PERS benefits at age 61 ($479,614.00) and at age
65 ($502,207.00) is $22,593.00, which represents Idom’s total loss
of future PERS retirement benefits (discounted to present value).
This retirement benefit loss was liquidated and incurred in total
when Idom was forced to take early retirement at age 61.
The plaintiff therefore seeks $22,593.00 of lost retirement
28
benefits in addition to the one-year front pay award ordered by the
Court.
The Court is of the opinion that she should also be awarded
the equivalent of one year of PERS contributions at present value,
but not full retirement benefits through age 65.
Front pay awards
are equitable remedies intended to make the plaintiff whole.
The
Court is of the opinion that the front pay award should account for
Idom’s prospective loss of PERS retirement benefits for one year,
in addition to the future wage loss award of one year.
In summary, the Court awards Idom a front pay award of one
year of lost wages, $85,902.00, plus the loss of PERS retirement
benefits for that one year.
The plaintiff shall submit its
expert’s calculation of the amount.
V. Post-Judgment Interest
Idom seeks an award of post-judgment interest pursuant to 28
U.S.C.
§
1961(a).
Post-judgment
interest,
prejudgment interest, is governed by Federal law.
Colony Ins. Co., 288 F.3d at 234.
as
opposed
to
See Boston Old
Further, the Fifth Circuit has
held that post-judgment interest on a money judgment is allowable
as a matter of right, not as a matter of discretion.
Reeves v.
Int’l Tel. & Tel. Corp., 705 F.2d 750, 752 (5th Cir.); see also Gele
v. Wilson, 616 F. 2d 146, 148 (5th Cir. 1980)(“[p]ursuant to 28
U.S.C. § 1961, all money judgments recovered in civil cases in
federal district courts automatically bear interest from the date
of entry.”).
29
The relevant statute provides that post-judgment “[i]nterest
shall be allowed on any money judgment in a civil case recovered in
a district court ... [and] shall be calculated from the date of the
entry of the judgment, at a rate equal to the weekly average 1-year
constant maturity Treasury yield, as published by the Board of
Governors of the Federal Reserve System, for the calendar week
preceding ... the date of the judgment.”
28 U.S.C. § 1961(a).
Therefore, the Court awards post-judgment interest on the
entire monetary award at the Federal rate of interest set forth in
28 U.S.C. § 1961(a).
VII. Conclusion
For the foregoing reasons,
IT IS HEREBY ORDERED that plaintiff Cindy Idom’s Motion for
Attorney
Fees
and
Costs,
Prejudgment
Interest,
Post-judgment
Interest and Front Pay (docket entry 99) is GRANTED IN PART AND
DENIED IN PART.
The Court awards the plaintiff the following:
(a) an award for attorney fees in the amount of $175,210.00;
(b) an award for non-taxable and expert costs in the amount of
$8,000.02;
(c) an award for front pay in the amount of $85,902.00, plus an
award for the loss of PERS retirement benefits for that one year;
(d) prejudgment interest on the back pay and compensatory damages
awarded in the amount of $271,737.00, to accrue at 3.5 percent
30
(3.5%) per annum, compounded annually, from July 5, 2013 until the
date of entry of the Final Judgment in this case; and
(e) post-judgment interest calculated from the date of the entry of
the judgment, at a rate equal to the weekly average 1-year constant
maturity Treasury yield, as published by the Board of Governors of
the Federal Reserve System, for the calendar week preceding the
date of the judgment, until the date on which the defendants pay
the Final Judgment in full;
IT IS FURTHER ORDERED that plaintiff Cindy Idom’s Bill of
Costs (docket entry 98) is GRANTED. The Court awards the plaintiff
$4,474.25 in taxable costs as requested in said Bill of Costs.
Counsel for plaintiff is requested to prepare a proposed Final
Judgment conforming to this Memorandum Opinion and Order.
SO ORDERED, this the 25th day of January, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
31
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