Marez v. Saint-Gobain Containers, Inc.
Filing
157
MEMORANDUM OPINION AND ORDER: IT IS HEREBY ORDERED that defendant's Motion for Judgment as a Matter of Law is GRANTED in part and DENIED in part. Doc. 132 It is DENIED with regard to the Motion for Judgment as Matter of Law [Doc. 132-1] and GR ANTED with regard to the request for a written opinion [Doc. 132-2] and DENIED as to defendant's request that liquidated damages not be allowed. [Doc. 132-3] IT IS FURTHER ORDERED that plaintiffs Motion for Prejudgment Interest and Reinstatement or, in the Alternative, Front Pay is GRANTED in part and DENIED in part. Doc. 135 It is GRANTED to the extent that prejudgment interest will be awarded in the amount of $3,209 [Doc. 135 -1] and DENIED with regard to the request for reinstate ment [Doc. 135-2] and GRANTED to the extent that front pay will be awarded for one year in the amount of $61,700. [Doc. 135-3]. IT IS FURTHER ORDERED that plaintiff's Motion for Attorney's Fees is GRANTED in part and DENIED in part. D oc. 126 It is GRANTED to the extent that attorney's fees are awarded in the amount of $109,173 [Doc. 126-1]. IT IS FURTHER ORDERED that plaintiff's Motion for Costs and Bill of Costs is GRANTED in part and DENIED in part. Doc. 127 It is GRANTED to the extent that plaintiff is awarded costs in the amount of $2,249.03. IT IS FURTHER ORDERED that an Amended Judgment will be enteredcontemporaneously herewith which will reflect the following: $206,500 Damages,$3,209 Prejudgment Interest, $209,709 Liquidated Damages, ($206,500 + $3,209 = $209,709), $61,700 Front Pay, $109,173 Attorneys Fees, $2,249.03 Costs_________TOTAL $592,540.03. Signed by Magistrate Judge Mary Ann L. Medler on 5/18/11. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KATHLEEN MAREZ,
Plaintiff,
vs.
SAINT-GOBAIN CONTAINERS, INC.,
Defendant.
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Case No. 4:09CV999MLM
MEMORANDUM OPINION AND ORDER
This matter is before the court on various post-trial Motions filed by the
parties.
I.
BACKGROUND
Plaintiff filed a Second Amended Complaint (Doc. 26) alleging (I) unlawful
retaliation in violation of the Missouri Human Rights Act (MHRA); (II)
discriminatory discharge in violation of the MHRA (gender); (III) discriminatory
discharge in violation of the MHRA (age); (IV) unlawful discharge in violation of the
Family and Medical Leave Act (FMLA) in 2007; and (V) unlawful discharge in
violation of the FMLA in 2008.
Defendant moved to dismiss Counts I, II and III (Docs. 30, 31). The court
issued a Memorandum Opinion dismissing Count I1 and denying the Motion to
Dismiss as to Counts II and III. [Doc. 42]
1
Count I was dismissed because plaintiff’s EEOC charge was filed
more than 180 days after the retaliatory conduct. See MHRA, Mo.Rev.Stat. at
§213.075.
Prior to trial, defendants moved for summary judgment on all of plaintiff’s
claims. (Docs. 53, 54) The court granted summary judgment on Count III (age
discrimination) and Count IV (the 2007 FMLA retaliation claim.)
Plaintiff’s
remaining claims - gender discrimination and the 2008 FMLA retaliation claim proceeded to trial in January, 2011. The jury found in favor of defendant on
plaintiff’s gender discrimination claim and found in favor of plaintiff on the 2008
FMLA retaliation claim. The jury awarded plaintiff $206,500 in damages. The court
entered judgment in the amount of $206,500 and an additional $206,500 in
liquidated damages.
II.
DEFENDANT’S RENEWED MOTION FOR JUDGMENT AS A
MATTER OF LAW [DOC. 132]; PLAINTIFF OPPOSED THE
MOTION [DOC. 150]; DEFENDANT REPLIED [DOC. 153]
In this Motion defendant moves the court for Judgment as a Matter of Law on
Plaintiff’s 2008 FMLA retaliation claim.2 Defendant argues it is entitled to judgment
as a matter of law because plaintiff gave the jury no legally sufficient evidentiary
basis upon which to find for her on her 2008 FMLA claim. In addition, defendant
argues that the issue of liquidated damages should not have been submitted to the
2
Written opinions are issued as a matter of course on motions for
judgment as a matter of law that are renewed after trial pursuant to Rule 50(b). It
is not standard practice in this district to issue such written opinions during trial.
To the extent defendant complains of the court’s failure to do so, the complaint is
noted.
-2-
jury by asking on the verdict form whether the defendant acted in good faith when
defendant terminated plaintiff.3
A.
Applicable Law Concerning Judgment as a Matter of Law
Pursuant to Rule 50 of the Federal Rules of Civil Procedure, Judgment as a
Matter of Law (“JAML”) should not be granted unless “a party has been fully heard
on an issue and there is no legally sufficient evidentiary basis for a reasonable jury
to find for that party on that issue.” Fed.R.Civ.P. 50(a)(1). In applying this standard,
a court must “draw all reasonable inferences in favor of the non-moving party
without making credibility assessments or weighing the evidence.”
Arabian
Agriculture Services Co. v. Chief Industries, Inc., 309 F.3d 479, 482 (8th Cir. 2002)
(quoting Phillips v. Collings, 256 F.3d 843, 847 (8th Cir. 2001)). A court should
grant judgment as a matter of law “only when all of the evidence points one way and
is ‘susceptible of no reasonable inference sustaining the position of the moving
party.’” Kinserlow v. CMI Corp., 217 F.3d 1021, 1025 (8th Cir. 2000) (quoting Smith
v. World Ins. Co., 38 F.3d 1456, 1460 (8th Cir. 1994) and White v. Pence, 961 F.2d
776, 779 (8th Cir. 1992)). The court’s review of the jury’s verdict is extremely
deferential and the court cannot grant the Motion unless, after reviewing the
evidence in the light most favorable to the verdict, the court concludes that no
reasonable jury could have returned a verdict for the non-moving party. Morse v.
3
Defendant filed a Supplemental Submission in Opposition
to an Award of Liquidated Damages. [Doc. 124]
-3-
Southern Union Company, 174 F.3d 917, 922 (8th Cir. 1999); Denesha v. Farmers
Ins. Exchange, 161 F.3d 491, 497 (8th Cir. 1998).
In considering defendant Saint-Gobain’s Motion for Judgment as a Matter of
Law, this court must: (1) consider the evidence in the light most favorable to
plaintiff; (2) assume all conflicts in the evidence will resolve in plaintiff’s favor; (3)
assume plaintiff proved all facts that her evidence tended to prove; and (4) give
plaintiff the benefit of all favorable inferences that may reasonably be drawn from
the proven facts. See Morse, 174 F.3d at 922; Denesha, 161 F.3d at 497. In order to
prevail on its Motion for Judgment as a Matter of Law defendant Saint-Gobain “has
the difficult task of demonstrating that all of the evidence points in [its] direction
and is susceptible of no reasonable interpretation sustaining [plaintiff’s] position.”
Morse, 173 F.3d at 922.
B.
Discussion
At trial plaintiff had the burden of proving each element of her FMLA
retaliation claim such that a reasonable jury could find in her favor on that claim.
Defendant argues that plaintiff failed to present any evidence that her FMLA
notification was the determining factor, or the “but for” cause, of her termination.
Plaintiff argues that a reasonable jury of eight persons unanimously did find that the
evidence showed that plaintiff was terminated for informing her supervisor of her
need to take FMLA leave and that defendant should have known that such
termination would reasonably violate the FMLA.
-4-
In order to prove an FMLA retaliation claim, a plaintiff must prove that (a) she
requested FMLA leave or notified her employer of her need to take FMLA leave and
(b) that the request/notification was the determining factor, or the “but for” cause,
of her termination. Hite v. Vermeer Mfg. Co., 361 F.Supp. 2d 935, 942 (S.D. Iowa
2005). Plaintiff’s only evidence that she requested FMLA leave or notified her
employer of her need to take FMLA leave is that she testified she told Sandy Cook
that she would need to take leave “soon” because her husband was going to have his
toe amputated. Sandy Cook denied that this occurred. Applying the standard set out
above and viewing the evidence in the light most favorable to the verdict, the court
must assume conflicts in the evidence are resolved in plaintiff’s favor. Therefore,
assuming plaintiff told Sandy Cook of her need to take FMLA leave, the evidence
presented was undisputed that none of the other three decisionmakers was aware of
it. Lisa Steiner, Scott Meade and Charlie Franzoi all testified they did not know
plaintiff had requested FMLA leave at the time they made the termination decision.
However, again viewing the evidence in the light most favorable to the verdict, the
jury may not have believed their testimony.4 Plaintiff admitted she did not complete
any paperwork or take any other formal steps usually required by Saint-Gobain for
an individual to request FMLA leave.
4
Credibility determinations are not to be considered in deciding
a Motion for Judgment as a Matter of Law. Kramer v. Logan County School District
No. R-1, 157 F.3d 620, 624 (8th Cir. 1998), (citing Triton Corp. v. Hardrives, Inc., 85
F.3d 343, 345) (“We will not weigh, evaluate, or consider the credibility of the
evidence.”)
-5-
Plaintiff’s theory was that as soon as Sandy Cook learned of the FMLA request,
she went on a “witch hunt,” hurried to gather paperwork that would support
plaintiff’s termination and hastily called together the other decisionmakers because
Sandy Cook was “out to get her” or at the very least, looking for a reason to fire her.
There is no question that plaintiff presented evidence that could be construed as her
“having history” with Sandy Cook: Plaintiff described a litany of incidents in which
she and Sandy Cook were at odds including: she testified that when she asked Sandy
Cook for more training, Ms. Cook told her to go to someone else; she testified she
was written up for insubordination for complaining that Sandy Cook disciplined a
female employee for actions for which male employees were not disciplined and
allegations that she aggressively threw papers across a table at Sandy Cook; she
testified that prior to plaintiff’s FMLA leave in 2007, Sandy Cook told her “you better
be on your death bed if you are going to miss work;” that in 2007 plaintiff took FMLA
leave after emergency surgery and Sandy Cook showed hostility towards her for
taking that leave and asked her if she could come in regardless; that Lisa Steiner
prematurely terminated plaintiff in 2007 while she was still out on FMLA leave and
re-hired her when she realized should could have been legally liable for violating the
FMLA leave policy; and that on January 28, 2008 plaintiff notified Sandy Cook that
she would be needing to take FMLA leave “soon” for her husband’s toe amputation.
She was scheduled to be off work the following two days and in that time period
when plaintiff was off work, Sandy Cook looked for any and every reason to get her
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terminated and printed out all her findings to be presented to the other
decisionmakers who called her in after only a day and a half.
While temporal proximity alone is rarely sufficient to demonstrate causation,
the timing of the termination just one and a half days after she told Sandy Cook she
would need FMLA leave together with the fact that the other decisionmakers only
reviewed documents shown them by Sandy Cook could certainly be seen as sufficient
to around the jury’s suspicion. See, Bradley v. Widnall, 232 F.3d 626, 633 (8th Cir.,
2000)(a plaintiff “must do more than point to the temporal connection between the
filing of her first complaint and the [employer’s] allegedly adverse actions.”)
Plaintiff was told she was being terminated for failing to check off that a piece
of inspection equipment was not reporting, that she was not following procedures
and that she was allegedly “pencil-whipping” her documents. Plaintiff produced
evidence that other production supervisors were similarly shown to have failed to
check off that the same inspection equipment was not reporting and were not
similarly terminated; that other production supervisors were similarly shown to have
failed to follow procedures and were not similarly terminated; and that other
production supervisors were similarly shown to have quickly filled out documents,
leaving things blank, and/or not filled out correctly and were not similarly
terminated. While this latter evidence was introduced primarily for plaintiff’s gender
claim, clearly it has relevance to the instant discussion because it is plaintiff’s
position that the only difference between her conduct and that of the other
production supervisors is that she requested FMLA leave and they did not.
-7-
Because each of the other three decisionmakers testified they did not know of
plaintiff’s FMLA request and that they made an independent evaluation of the
records presented by Sandy Cook and decided to terminate plaintiff, defendant
argues that there is therefore no causal “but for” connection between the termination
and the FMLA request.
Plaintiff, to the contrary, argues that the “cat’s paw” theory applies to this
case.5 “In the employment discrimination context, ‘cat’s paw’ refers to a situation in
which a biased subordinate, who lacks decision making power, uses the formal
decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory
employment action.” Qamhiyah v. Ohio State Univ. of Science & Technology, 566
F.3d 733, 742 (8th Cir. 2009), (quoting EEOC v. BCI Coca-Cola Bottling Co. of L.A.,
450 F.3d 476, 484 (10th Cir. 2006)). Pursuant to this theory, the Eighth Circuit has
stated that “An employer can be liable, under certain circumstances, where the
formal decisionmaker is not the person who harbored an unlawful motive to
terminate the employee.” Qamhiyah, 566 F.3d at 472 (quoting Dedmon v. Staley,
315 F.3d 948, 949 n. 2 (8th Cir. 2003)).
5
“The ‘cat’s paw’ doctrine derives its name from a fable, made
famous by la Fontaine in which a monkey convinces an unwitting cat to pull
chestnuts from a hot fire. See Fables of La Fontaine, 344 (Walter Thornbury trans.,
Chartwell Books 1984). As the cat scoops the chestnuts from the fire one-by-one,
burning his paw in the process, the monkey eagerly gobbles them up leaving none
for the cat. Id. Today the term ‘cat’s paw’ refers to ‘one used by another to
accomplish his purposes.’ Webster’s Third New International Dictionary
Unabridged, 354 (2002).” EEOC v. BCI Coca-Cola Bottling Company of L.A., 450
F.3d 476, 484 (10th Cir. 2006).
-8-
This circuit’s “cat’s paw” rule provides that an employer cannot shield
itself from liability for unlawful termination by using a purportedly
independent person or committee as the decisionmaker where the
decisionmaker merely serves as the conduit, vehicle, or rubber stamp
by which another achieves his or her unlawful design.
Qamhiyah, 566 F.3d at 472 (quoting Richardson v. Sugg, 448 F.3d 1046, 1060 (8th
Cir. 2006)).
Although the Eighth Circuit has yet to define the level of control biased
subordinates must exert over decisionmakers before attributing liability to
employers, they have given lower courts a method of analysis for resolving the issue.
The Eighth Circuit applies its prior “cat’s paw” case law to resolve the rule’s
application. See Qamhiyah, 566 F.3d at 743 - 745 summarizing the cases analyzed:
Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316 (8th Cir. 1994)
(employer liable when facts relied upon by decisionmakers have been filtered by a
manager determined to purge the labor force of women); Lacks v. Ferguson
Reorganized School District R-2, 147 F.3d 718 (8th Cir. 1998) (teacher’s claim of race
discrimination failed because the decision to terminate her was made by the school
board and there was no evidence that the school board deferred to the opinions of
the biased principal or superintendent in making the determination); Kramer v.
Logan County School District No. R-1, 157 F.3d 620 (8th Cir. 1998) (where biased
principal and superintendent initiated the actions that led to the school board’s
review and non-renewal of teacher’s contract, it was not unreasonable for the jury
to find her non-renewal was the result of intentional gender discrimination);
Dedmon v. Staley, 315 F.3d 948 (8th Cir. 2003) (insufficient evidence to support
-9-
proffered “cat’s paw” instruction where there was no evidence that immediate
supervisor had unlawful motive or initiated, exercised or even possessed any
influence or leverage over county clerk’s decision to fire the employee); Richardson
v. Sugg, 448 F.3d 1046 (8th Cir. 2006) (university president was not “cat’s paw” for
biased athletic director where coach’s contract provided the university president to
independently review any decision to terminate coach, the president conducted the
review and independently determined there was insufficient basis to follow the
coach); finally, Qamhiyah v. Iowa State Univ. of Science and Technology, 566 F.3d
at 745. (the case that sets out the applicable method of analysis, held there was
simply no evidence that the Board of Regents that did an independent review served
as the conduit, vehicle, or rubber stamp by which another achieved his or her
unlawful design).
As can be seen, while the method of analysis is clear, the cases provide divided
guidance. However, Kramer, 157 F.3d 620 is particularly instructive. In Kramer, the
plaintiff’s theory was that the biased principal and superintendent initiated the nonrenewal of plaintiff’s contract and made material misrepresentations and omissions
to the school board in presenting their recommendation and thus the school district
was held liable. Kramer offered evidence of her competency and showed the
principal and superintendent’s disparate treatment of female teachers, and argued
it sufficiently undermined the legitimate non-discriminatory reasons offered by the
school board. The court held that:
Assuming the facts as alleged by Kramer were proven, giving her the
benefit of all reasonable inferences, and resolving all conflicts in the
- 10 -
evidence in her favor, we cannot say that it was unreasonable for the
jury to conclude that the non-renewal of her full-time teacher’s contract
was the result of intentional gender discrimination.
Kramer, 157 F.3d at 624-25.
The same is true in the instant case. As soon as plaintiff told Sandy Cook she
was going to need FMLA leave “soon,” Sandy Cook gathered the damaging
documents and initiated the meeting of the decisionmakers. All three (Scott Meade,
Lisa Stein and Charlie Franzoi) testified they only reviewed the documents shown
to them by Sandy Cook and did not conduct an independent investigation. Sandy
Cook did not tell them that Dave Boyer, Jeff Terveer, Brian Hill and Danny Mahurin
were guilty of essentially the same conduct for which she was recommending
plaintiff’s termination and for which she had not similarly recommended their
termination. Assuming the facts as alleged by plaintiff were proven, giving her the
benefit of all reasonable inferences, and resolving all conflicts in her favor, the court
cannot say it was unreasonable for the eight person jury to conclude that plaintiff’s
termination was the “but for” result of her notification to Sandy Cook of her need to
take FMLA leave.
The court finds that the “cat’s paw” theory does apply in this case and
therefore defendant’s Renewed Motion for Judgment as a Matter of Law will be
denied.
C.
Applicable Law Concerning Liquidated Damages
The FMLA states that an employer who violates the FMLA shall be liable to an
eligible employee for damages equal to - -
- 11 -
(i)
the amount of - (1)
any wages, salary, employment benefits, or other
compensation denied or lost to such employee by reason of the
violation;
...
(ii) the interest on the amount described in clause (i) calculated at
the prevailing rate; and
(iii) an additional amount as liquidated damages equal to the sum of
the amount described in clause (i) and the interest described in clause
(ii), except that if an employer who has violated section 2615 of this title
proves to the satisfaction of the court that the act or admission which
violated section 2615 of this title was in good faith and that the
employer had reasonable grounds for believing that the act or
admission was not a violation of section 2615 of this title, such court
may, in the discretion of the court, reduce the amount of the liability to
the amount and interest determined under clauses (i) and (ii),
respectively. . . .
29 U.S.C. § 2617
“Liquidated damages are considered compensatory rather than punitive in
nature.” Thorson v. Geminin, Inc., 96 F. Supp. 2d 882, 890-91 (8th Cir. 1999).
“Doubling damages is not some disfavored penalty. Although they are discretionary
rather than mandatory, there is a strong presumption in favor of doubling, a
presumption only overcome only by the employer’s good faith and reasonable
grounds for believing that the act or omission was not a violation of the Act.” Id. at
891. “Neither the FMLA nor the implementing regulations establish parameters by
which to assess the validity of a stated ‘good faith’ defense.” Morris v. VCW, Inc.,
1996 WL 740544 at *2 (W.D. Mo.).
D.
Discussion
Plaintiff argues that when she asked for FMLA leave in 2007, Lisa Steiner
(defendant’s Human Resources Manager) acted prematurely and terminated plaintiff
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while she was still on FMLA leave. Plaintiff says that upon realizing this error, SaintGobain “reluctantly” rehired her, and that Lisa Steiner sounded irritated. Plaintiff
testified that when she asked for FMLA leave in 2008 for her husband’s toe
amputation, Sandy Cook sounded irritated and at that point, went on her “witch
hunt.”
Defendant, on the other hand, argues that Saint-Gobain’s rehiring plaintiff in
2007, when it learned of its error, is solid evidence that Saint-Gobain was concerned
about the implications of not following the law and took steps immediately to act in
conformity with it. Lisa Steiner testified that she herself had taken FMLA leave with
no problems and Saint-Gobain put on evidence of its ethics policy and its EEO policy
showing its regard for the law.
The court agrees with defendant that this is a somewhat unique case in that
there was no formal denial of FMLA leave or termination of plaintiff while she was
on FMLA leave in 2008. The disputed issue is whether plaintiff told Sandy Cook she
would need leave. Therefore, the case is not susceptible to a “traditional” good faith
analysis. In any case however, the defendant bears the burden of establishing that
it acted with subjective good faith and that it had an objectively reasonable belief that
its conduct did not violate the law. Hite v. Vermeer Mfg. Co., 446 F.3d 858, 868 (8th
Cir. 2006). Because of this, and because the statute states that the court should
make the decision, the court asked the jury on the verdict form for their opinion on
whether Saint-Gobain acted in good faith. The jury answered in the negative. See
Murphy v. FedEx Nat. LTL, Inc., 2009 WL 1939957 at *1 (E.D.Mo.)(“the jury also
- 13 -
found that Defendant had not acted in good faith when it denied Plaintiff FMLA
benefits and terminated her employment. . .”) (emphasis added).
However, even if the employer did act in good faith “the decision to award
liquidated damages is still within the discretion of the trial court.” Hite, 446 F.3d at
686, (quoting Nero v. Indus. Molding Corp., 167 F.3d 921, 928 (5th Cir. 1999)). “The
district court should exercise its discretion ‘consistently with the strong presumption
under the statute in favor of doubling.’” Hite, 446 F.3d at 868-69, (quoting Shea v.
Galaxie Lumber & Constr. Co., Ltd., 152 F.3d 729, 733 (7th Cir. 1998)). “When a
district court submits a claim to an advisory jury, the court is free to accept or reject
the jury’s advisory verdict in making its own findings.” Harris v. Secy. U.S.
Department of Army, 119 F.3d 1313, 1320 (8th Cir. 1997). Here, the court has
reviewed the trial testimony and the arguments of the parties and has taken into
consideration the advice of the jury. Showing good faith when a jury has determined
intentional retaliation is a very high bar to clear, Hite, 446 F.3d at 869, and thus
reviewing the evidence in the light most favorable to the verdict, the court finds that
it is not unreasonable to award liquidated damages.6
III.
PLAINTIFF’S MOTION FOR PREJUDGMENT INTEREST AND
REINSTATEMENT OR IN THE ALTERNATIVE, FRONT PAY [Doc.
135]; DEFENDANT RESPONDED IN OPPOSITION [Doc. 138];
PLAINTIFF REPLIED [Doc. 152]
6
Liquidated damages are calculated not only on wages, salary,
employment benefits or other compensation denied to plaintiff because of the
retaliation but on the interest at the prevailing rate on such damages as well.
Therefore the Judgment previously entered will be amended.
- 14 -
A.
Applicable Law Concerning Prejudgment Interest
28 U.S.C. § 2617 provides that an employer who violates the FMLA is liable for
damages in the amount of any wages, salary, employment benefits or other
compensation plus interest thereon “calculated at the prevailing rate.” 28 U.S.C. §
2617(a)(1)(A)(ii). “. . .The Eighth Circuit calculates both prejudgment and post
judgment interest at the rate specified in 28 U.S.C. § 1961.” EEOC v. Dooley, 2008
WL 631175(D.S.D.) (citing Novak v. Mackintosh, 937 F.Supp. 873, 883 (D.S.D.
1996)) (citing Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1331 (8th Cir. 1995)). The
court acknowledges that there are cases approving alternate calculations, however
finds the above-cited authority more persuasive.
Regarding post-judgment interest, 28 U.S.C. § 1961 provides:
a.
Interest shall be allowed on any money judgment in a civil case
recovered in a district court. ...Such interest 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.
B.
Discussion
The parties do not dispute plaintiff’s entitlement to pre-judgment interest.
They differ on the method of calculation. Plaintiff proposes using the rate of interest
set forth in 26 U.S.C. § 6621 which is the rate the Internal Revenue Services (IRS)
uses to calculate interest on over-payment and under-payment of taxes and which
is periodically adjusted by the Secretary of the Treasury to reflect current economic
conditions. Plaintiff compounds the quarterly interest and calculates she is entitled
to $23,549.96 in pre-judgment interest.
- 15 -
Defendant proposes using 28 U.S.C. § 1961 and has attached a chart showing
the weekly average 1-year constant maturity Treasury yield rates. Ex. C and a
spreadsheet, Ex. D, to its opposition (Doc. 138) to plaintiff’s Motion which shows its
calculations.
The court finds that at the time she was terminated plaintiff’s annual salary
was $61,700. She made $5,142 a month.7 She was terminated on January 30, 2008
and there was no evidence adduced that she did not receive her monthly salary for
the month of January. Her back pay period began in February, 2008. Judgment was
entered in early February, 2011. Her final full month of the back pay period was
January, 2011. Thus the back pay period consisted of three years or thirty-six
months. The court has examined Exhibits C and D to defendant’s Opposition
(Doc. 138) and finds that defendant accurately calculated plaintiff’s prejudgment
interest at $3,209.76.
C.
Applicable Law Concerning Reinstatement
The FMLA provides if there has been a violation of the Act that in addition to
damages and interest thereon the employee may be entitled to “such equitable relief
as may be appropriate, including employment, reinstatement and promotion.” 29
U.S.C. § 2617(a)(1)(B).
In determining whether to award reinstatement, the Eighth Circuit considers
the following factors: (1) whether the employer is still in business, (2) whether there
is a comparable position available for the employee to assume, (3) whether an
7
The parties agree on these figures.
- 16 -
innocent employee would be displaced by reinstatement, (4) whether the parties
agree that reinstatement is a viable remedy, (5) whether the degree of hostility or
animosity between the parties -- caused not only by the underlying offense but also
by the litigation process -- would undermine reinstatement, (6) whether
reinstatement would arouse hostility in the workplace, (7) whether the employee has
since acquired similar work, (8) whether the employee’s career goals have changed
since the unlawful termination, and (9) whether the employee has the ability to
return to work for the defendant employer - - including consideration of the effect
of the adverse employment action on the employee’s self worth. Ogden v. Wax
Works, Inc., 29 F. Supp. 2d 1003, 1010 (N.D. IA. 1998), aff’d., 214 F.3d 999 (8th Cir.
2000).
Reinstatement is often characterized as the “preferred” remedy in unlawful
termination cases. However, the wisdom of this judicially-created preference for
reinstatement over front pay has been challenged. See Ogden, 29 F.Supp.2d at 1008
and the analysis by Professor Susan K. Grebeldinger in her article entitled The Role
of Work Place Hostility in Determining Prospective Remedies for Employment
Discrimination: A Call for Greater Judicial Discretion in Awarding Front Pay, 1996
U.ILL.L.REV.319 (1996).
Professor Grebeldinger cogently observes, inter alia, that reinstatement
“does not always serve the interest of the victims of discrimination, the
employers, or society.” Id. at 320. Although she recognizes that
reinstatement “can be a powerful remedial tool,” Professor
Grebeldinger emphasizes that front pay can serve the same remedial
functions and may better serve to make a plaintiff whole in a given case.
Id. at 362. She concludes her critique with the following observations:
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[C]ourts should abandon the reinstatement preference and
determine the appropriate prospective remedy case by
case.
And, in doing so, they must pay greater attention to the
hostility exhibited by one or both parties. Essentially, the
court should forego their tradition of preferring
reinstatement and adopt the older and more powerful
tradition of using their full equitable discretion in
assessing remedies.
Ogden, 29 F.Supp.2d at 1008.
The Ogden court does an extensive analysis of the factors to be considered in
ordering reinstatement, chief among them, hostility or animosity between the
parties. See Ogden, 29 F.Supp.2d at 1008-1010. The list of factors
is not intended to provide a uniform litany of pertinent considerations.
Indeed compilation of such a list is impracticable given the factintensive nature of the reinstatement inquiry.. . . Although these factors
are traditionally considered by courts in ascertaining whether
reinstatement is an appropriate remedy, the trial court must take care
to fashion any equitable relief to the circumstances of the case at hand.
Ogden, 29 F.Supp.2d at 1010 (citation omitted)
D.
Discussion of Reinstatement
Defendant first argues that plaintiff has waived her request for reinstatement
by raising it for the first time in a Motion to Alter or Amend the Judgment (citing
Moysis v. DTG Datanet, 278 F.3d 819, 829 (8th Cir. 2002)) (plaintiff waived issue
of front pay by raising it for the first time on appeal). However, in plaintiff’s Second
Amended Complaint, plaintiff’s prayer for relief included “. . .any and all further
relief as to this court seems just and proper under the circumstances.” The court
- 18 -
finds that this contemplates equitable relief and that plaintiff did not waive her
request for reinstatement.
Although she stated in her deposition that she was not interested in
reinstatement8 she now apparently seeks it. However, applying the Ogden factors,
the court finds that reinstatement would not be appropriate.
Defendant clearly is still in business. The position of Production Supervisor,
the position plaintiff previously held, is one that is necessary to defendant’s
operation. Therefore, it is likely her position has been filled and thus she would
displace an innocent employee if she were reinstated. The parties do not agree that
reinstatement would be a viable remedy - - defendant vehemently opposes it.
Plaintiff has been unable to acquire similar work and her career goals have not
changed since the termination. With regard to the factor of the effect of the dismissal
of plaintiff’s self-worth, the court finds that plaintiff’s testimony was painfully
eloquent on how the dismissal has effected her, including but not limited to her
embarrassment when she sees old friends in the grocery store.
The most frequently cited factors in analyzing whether plaintiff should be
reinstated are the degree of hostility or animosity between the parties caused not
only by the underlying offense but also by the litigation process and whether
reinstatement would arouse hostility in the work place. In the present case,
reinstatement would not serve the interest of either plaintiff or defendant.
8
During plaintiff’s deposition the following exchange took place:
Q: Are you asking for reinstatement? A: No thank you. See Exhibit A to Doc. 138 at
p. 243.
- 19 -
Reinstatement would be ill-advised because of the strained, if not totally hostile
relationship of the parties. The obvious tension between plaintiff and Sandy Cook,
who is still the cold end manager at the Pevely plant, as well as others who were
involved in defendant’s dismissal, makes it unlikely that plaintiff could be a
successful employee. Plaintiff herself testified as to her unhappiness with her
working conditions even before her dismissal.
The court finds that there is
irreparable animosity between the parties and that reinstatement would cause
discord and antagonism. See Ogden, 29 F. Supp.2d at 1008-1010 and cases cited
therein.
E.
Applicable Law Concerning Front Pay
“If the court concludes that reinstatement is an inappropriate form of
prospective relief, it may still elect to award the equitable remedy of front pay.
Ogden, 29 F. Supp.2d at 1010 (citing Denesha v. Farmers Ins. Exch., 161 F.3d 491,
501 (8th Cir. 1998)). Although front pay is not specifically provided for as a form of
relief under the FMLA, the Eighth Circuit has endorsed the use of front pay as an
alternative form of equitable relief when reinstatement is inappropriate. Denesha,
161 F.3d at 501. The Eighth Circuit has recognized that front pay is not so much a
monetary award for the salary the employee would have received but for the
discrimination but rather the monetary equivalent of reinstatement. Kramer v.
Logan County School District No. 1, 157 F.3d 620, 626 (8th Cir. 1998).
Factors to be considered in making an award of front pay include: (1) the
plaintiff’s age, (2) the length of time plaintiff was employed by the defendant
- 20 -
employer, (3) the likelihood the employment would have continued absent the
discrimination, (4) the length of time it will take plaintiff, using reasonable effort, to
secure comparable employment, (5) the plaintiff’s work and life expectancy, (6) the
plaintiff’s status as an at-will-employee, (7) the length of time other employees
typically held the position lost, (8) the plaintiff’s ability to work, (9) the plaintiff’s
ability to work for the defendant-employer, (10) the employee’s efforts to mitigate
damages, and (11) the amount of any liquidated or punitive damage award made to
the plaintiff. Ogden, 29 F. Supp. 2d at 1015.
F.
Discussion of Front Pay
Plaintiff requests the court to award her five years of front pay at $61,700 per
year, her salary in 2007, her last full year of employment before her termination.
($61,700 x 5= $308,500). Applying the Ogden factors, plaintiff is 46 and states in
her brief she would normally work until age 65. She worked for Saint-Gobain for one
and one-half years and has 20+ years of working experience as a manufacturing
Production Supervisor. The likelihood of her continuing at Saint-Gobain absent the
discrimination is doubtful because defendant’s evidence was persuasive that plaintiff
was simply not performing up to expectations. She was unfamiliar with the glass
making process and her supervisors did not believe she was improving. It is
reasonable to assume that her termination was inevitable. Plaintiff has tried for
approximately three years to secure comparable employment however has only been
able to obtain two part-time minimum wage-type jobs. When she applies for
comparable employment and the prospective employer learns she was fired from
- 21 -
Saint-Gobain, the employer loses interest immediately. It is reasonable to conclude
that plaintiff will be unable to secure comparable employment. Plaintiff was an atwill employee at Saint-Gobain and could be fired for any reason or no reason with
or without notice as long as the reason was not prohibited by law. Other employees
and shift supervisors at Saint-Gobain are long-term employees: Jeff Terveer who,
like plaintiff, had no prior glass making experience, lasted an even shorter period of
time than plaintiff did. Although plaintiff is able to work, her ability to work at
Saint-Gobain- - given her tensions with Sandy Cook and other supervisory personnel
- - is unlikely. The court finds that plaintiff has attempted to mitigate her damages
but for reasons discussed above she has been unsuccessful finding comparable
employment.
Because plaintiff has been awarded in excess of $200,000 in
liquidated damages, any amount of front pay should be considered in that light.
The Ogden factors cut both ways. The calculation of front pay, which is
necessarily uncertain, is a matter of equitable relief within the court’s discretion.
Hukkamen v. International Union of Operating Engineers, 3 F.3d 281, 286 (8th Cir.
1993). The court is mindful that front pay should not result in a windfall to plaintiff.
Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 322 (8th Cir. 1993). It is
significant that plaintiff only worked at Saint-Gobain for 1.5 years and her previous
work history indicates that she was never a long-term employee anywhere. She
voluntarily terminated her employment immediately prior to Saint-Gobain after one
year. Her longest employment since 1993 was two years and three months. Plaintiff
cites cases in which five years of front pay have been approved; defendant cites cases
- 22 -
in which an award of five years front pay was rejected. The court has reviewed all of
the cases cited by both parties and concludes that an award of one year of front pay
is equitable ($61,700).
IV.
PLAINTIFF’S MOTION FOR ATTORNEYS FEES [Docs. 126, 130];
DEFENDANT RESPONDED IN OPPOSITION [Doc. 139];
PLAINTIFF REPLIED [Doc. 151]; DEFENDANT SURREPLIED [Doc.
154]
A.
Applicable Law Concerning Attorney’s Fees
The FMLA provides that the court “shall, in addition to any judgment awarded
to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees and
other costs of the action to be paid by the defendant.” 29 U.S.C. § 2617(a)(3).
In determining what fees, if any, to award a plaintiff in a civil rights action, a
court must first decide whether plaintiff is a “prevailing party”; that is, whether he
achieved through litigation some of the benefit originally sought in bringing the suit.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); if the court answers this question in
the affirmative, it should then determine what attorney’s fees are reasonable under
the circumstances. Hensley, 461 U.S. at 438-40. Here the parties do not dispute that
plaintiff is the prevailing party on one of her five claims. Thus the court turns to the
issue of what attorney’s fees are reasonable.
The Eighth Circuit has adopted guidelines for attorney’s fees similar to those
set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974), in which the court listed twelve factors to be considered in determining a
- 23 -
reasonable attorney’s fee.9 Thorne v. Welk Investment, Inc., 197 F.3d 1205, 1213 (8th
Cir. 1999) (citing St. Louis Fire Fighters Ass’n., 96 F.3d at 332 n.10.) These twelve
factors, however, are to be applied more as considerations for adjustment upward
or downward, after an initial calculation of the product of the reasonable hours
multiplied by a reasonable rate. The factors are usually subsumed in that inquiry.
Hensley, 461 U.S. at 434 n.9. “A reasonable [attorney’s] fee is ‘one that is adequate
to attract competent counsel, but. . . [that does] not provide windfalls to attorneys.’”
McDonald v. Armontrout, 860 F.2d 1456, 1458 (8th Cir. 1988) (quoting Blum v.
Stenson, 465 U.S. 886, 897 (1984)). This requires a two-part analysis which
involves, first, determining the reasonable hourly rate and second, the number of
hours reasonably expended. This is known as the “lodestar amount.” Thus, “in
determining attorney fees, the district court should ordinarily award the number of
hours claimed multiplied by the attorney’s regular hourly rate. Hensley, 461 U.S. at
434 n.9. If however, the district court finds that a lesser amount is appropriate, it
9
The twelve factors are:
(1) the time and labor required, (2) the novelty and
difficulty of the question, (3) the skill requisite to perform
the legal services properly, (4) the preclusion of other
employment 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.
St. Louis Fire Fighters Ass’n. v. St. Louis, Missouri, 96 F.3d 323, 332 n.10 (8th
Cir. 1996).
- 24 -
may reduce the award, provided that the court states its reasons for so doing. See
e.g., St. Louis Fire Fighters, 96 F.3d at 332.
In addition, because fees should not be awarded for services performed on an
unsuccessful claim, the court must also consider whether and to what extent the
claims for relief involve a “common core of facts” or are based on “related legal
theories” such that they are inextricably linked. Hensley, 461 U.S. at 434-35. Where
successful and unsuccessful claims are so intertwined, it is difficult for the court to
allocate the fees appropriately. Id. Courts should therefore consider the relationship
between successful and unsuccessful claims. See Lash v. Hollis, 525 F.3d 636, 643
(8th Cir. 2008). There is no precise rule or formula for the allocation of fees for
successful and unsuccessful claims. “A district court may attempt to identify specific
hours that should be eliminated, or it may simply reduce the award to account for the
limited success.” Parton v. GTE North, Inc., 971 F.2d 150, 156 (8th Cir. 1992)
(quoting Hensley, 461 U.S. at 436-437).
B.
Discussion
In determining the Hensley two-part analysis, plaintiff’s attorney has claimed
an hourly rate of $350 based on comparable rates charged by her contemporaries in
the field who also graduated from Washington University Law School in 1993.10 She
claims that her hourly rate is “reasonable and consistent with attorneys of
comparable skill, reputation and expertise performing similar work in the St. Louis
10
She claims an hourly rate of $100 when she performed paralegal
duties.
- 25 -
area.” Plaintiff’s Memorandum in Support of her Motion, Doc. 130 at p.7. Defendant
does not dispute or challenge plaintiff’s hourly rate for legal or paralegal work.
Plaintiff’s attorney has attached a detailed accounting in chronological order
of the date the work was done, the nature of the work performed and the time
required to perform the work. See plaintiff’s attorney’s Memorandum in Support of
her Motion, Doc. 130, Ex.1, Attachment. She claims the hours expended in her legal
capacity total 618.1; in her paralegal capacity, the hours total 20.1.
Defendant challenges the number of hours reasonably expended. Hensley, 461
U.S. at 434 n.9. Defendant argues that the court can perform a line item reduction
on plaintiff’s attorney’s claimed fee or “simply reduce the award to account for the
limited success” as suggested in Hensley, 461 U.S. at 436-37. Defendant considers
the latter, the percentage-based reduction, to be the most equitable. The court agrees
that this method of calculation is preferable.
Plaintiff originally brought five claims against defendant. Of those five counts,
one (retaliation in violation of the MHRA) was dismissed early in the litigation as a
result of defendant’s Motion to Dismiss that claim. Two other counts (unlawful
termination in violation of the FMLA in 2007 and age discrimination under the
MHRA) were resolved in defendant’s favor as a result of defendant’s Motion for
Summary Judgment. Plaintiff’s two remaining claims (MHRA gender discrimination
claim and 2008 FMLA claim) proceeded to a one week jury trial in January of 2011.
Of those two claims, plaintiff prevailed on the 2008 FMLA count only. Plaintiff
argues vehemently that the five claims were inextricably related. She describes at
- 26 -
length the hard-fought nature of the litigation and the numerous motions vigorously
litigated and endless discovery disputes. See plaintiff’s attorney’s Memorandum in
Support of her Motion, Doc. 130 at p.9-11.
Defendant, on the other hand, argues a detailed and painstaking recital of the
reasons why plaintiff’s claims were unrelated both factually and legally. Defendant
argues that based on its analysis of deposition transcripts, dispositive motions and
the entire trial transcript and after literally counting the number of lines in each
devoted to plaintiff’s 2008 FMLA claim, plaintiff’s attorney’s fees should be adjusted
downward by 70%. Defendant acknowledges that in some instances more time and
effort may have been devoted to plaintiff’s 2008 FMLA claim than 30% but points
that in just as many instances, far less than 30% was devoted to the 2008 FMLA
claim. The average of all the instances reviewed results in defendant’s conclusion
that only 30% of plaintiff’s attorney’s time and energy was spent pursuing her 2008
FMLA claim or the litigation in general.11
The court notes that of plaintiff’s original five claims, only two went to trial
and plaintiff prevailed on only one claim. On that one claim all she had to prove was
that plaintiff notified defendant of her intent to take FMLA leave, that defendant
terminated plaintiff and that plaintiff’s notifying defendant of her intention to take
FMLA leave was a determining factor in defendant’s decision to terminate her.
11
Defendant uses the term “litigation in general” or the “litigation
generally” to refer to certain facts about plaintiff, her employment and her
termination which are facts which plaintiff would have needed to present regardless
of which claims she brought or prevailed upon against defendant.
- 27 -
Plaintiff’s only evidence that she told Sandy Cook that she would need to take FMLA
leave soon was her own assertion that she did in fact notify Ms. Cook. Defendant
argues that plaintiff’s assertion and the temporal proximity between the notice and
the termination are the only evidence on this issue.
However, defendant overlooks the reasons defendant told plaintiff she was
being fired and plaintiff’s relentless and extensive evidence that co-workers did the
same things and were not fired. Although there was no evidence whether or not the
co-workers asked for FMLA leave, it is plaintiff’s contention that the only difference
was that they did not ask for FMLA leave. The other obvious difference is that the
co-workers were male. That fact goes to her gender claim. Relevant here is that coworkers who apparently did not request FMLA leave were not fired. Admissible
evidence is evidence that the jury may use as they see fit absent an instruction that
the evidence is being admitted for a limited purpose. See Eighth Circuit Model Jury
Instructions (Civil) 1.02. No request for such a limiting instruction was made.
The court therefore finds that defendant’s position that the requested
attorney’s fees should be reduced by 70% is excessive. The court has recalculated
defendant’s line count analysis for the percentage reduction as well as the law set out
above. The court has also considered the twelve factors adopted by the Eighth
Circuit for determining whether to augment or reduce attorney’s fees. The court
finds that the amount of time and labor required to prosecute this case was
extraordinary. Great skill was necessary to perform the legal services properly.
Because plaintiff’s attorney is a solo practitioner, the amount of time expended did
- 28 -
preclude other employment. The hourly rate she has requested is customary and was
a contingent fee. The experience, reputation and ability of the attorneys on both
sides is unquestioned. Both parties did an extraordinary job of explaining the
procedures used in the glass manufacturing business and probably could run SaintGobain’s plant by themselves if required to do so. Having reviewed all these factors,
the court finds that a 50% reduction is appropriate.
Plaintiff has requested
$218,345. ($216,335 of this amount is for attorney work and $2,010 is for paralegal
work) A 50% reduction amounts to an award of $109,173.
V.
PLAINTIFF’S MOTION FOR COSTS AND BILL OF COSTS [Docs.
127, 130]; DEFENDANT RESPONDED IN OPPOSITION [Doc. 137];
PLAINTIFF REPLIED [Doc. 149]; DEFENDANT SURREPLIED [Doc.
155]
A.
Applicable Law Concerning Costs
The FMLA specifically provides that the court “shall, in addition to any
judgment awarded to the plaintiff allow a reasonable attorney’s fee, reasonable
expert witness fees and other costs of the action to be paid by the defendant.” 29
U.S.C. § 2617(a)(3).
Fed.R.Civ.P. 54(d)(1) provides, in relevant part, that “[u]nless a federal statute,
these rules or a court order provides otherwise, costs - - other than attorney’s fees - should be allowed to the prevailing party.” This provision codifies the presumption
that the prevailing party is entitled to costs. Greaser v. State Dep’t. of Corrections,
145 F.3d 979, 985 (8th Cir. 1998) (citing Bathke v. Casey’s Gen. Stores, Inc., 64 F.3d
340, 347 (8th Cir. 1995)).
- 29 -
Further, 28 U.S.C. § 1920 states12:
A judge or clerk of any court of the United States may tax as costs
the following:
(1)
Fees of the clerk and marshal;
(2)
Fees for printed or electronically recorded transcript necessarily
obtained for use in the case;
(3)
Fees and disbursement 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
interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in
the judgment or decree.
“In Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987) the
Supreme Court found that the word ‘costs’ in Rule 54(d) must be read in harmony
with the word ‘costs’ in §1920.” Emmenegger v. Bull Moose Tube Co., 33 F. Supp.
2d 1127, 1132 (E.D.Mo. 1998). The court has no reason to believe that the same is not
true with regard to the word “costs” in the FMLA 29 U.S.C. § 2617(a)(c). See Murphy
v. FedEx National LTL, Inc., 2009 WL 1939957 n.9 at *3 (E.D. Mo. 2000) (using 29
12
The form provided and required by the Eastern District of
Missouri for submission of a bill of costs states the §1920 requirements in slightly
different verbiage but with the same substantive elements.
- 30 -
U.S.C. § 2617(a)(3) to allow plaintiff to recover costs but applying §1920 to determine
what costs were allowable).
B.
Discussion
Defendant begins its objections by pointing out that the court’s Judgment
entered February 8, 2011 specified that “each party shall bear its own costs.” The
court acknowledges that this was an error because the of FMLA’s mandatory award
of costs to the prevailing party. It was mistakenly included because it is frequently
standard language in a judgment. The Judgment will be vacated and an amended
Judgment entered.
Defendant next complains that because of this error defendant did not submit
a Bill of Costs as prevailing party on the MHRA gender discrimination count. Def.’s
Response, Doc. 137 at p.4. Defendant has however, repeatedly throughout this
litigation made clear its ability to raise issues with which it disagrees with the court.
Defendant could have filed - - immediately after entry of the Judgment - - a motion
to amend and to allow defendant to file a bill of costs. Defendant has waived this
point. In addition, it is to be noted that an award of costs to prevailing defendants
in a civil rights case would have a chilling effect on potential plaintiffs.
Defendant then argues that plaintiff’s Motion for Costs and Bill of Costs should
be denied as to costs that are not associated with or inextricably linked to the claim
upon which she prevailed or should be denied as costs not awardable under §1920.
First, examining items not authorized by §1920:
- 31 -
(1)
$660 paid to mediator Jerome Diekemper for court ordered mediation.
The Eighth Circuit has held that 28 U.S.C. § 1920 does not include the mediation fee
as a taxable cost. Brisco-Wade v. Carnahan, 297 F.3d 781, 782 (8th Cir. 2002)
(holding the district court abused its discretion in taxing mediator’s fee). Plaintiff
points out that she was permitted to proceed in forma pauperis and thus should not
have to pay the mediator’s fee. There is a provision in the local rules for a person
who demonstrates an inability to pay to request the court to appoint a neutral who
has agreed to serve pro bono. No such request was made. Therefore, $660 will be
disallowed.
(2)
$344 for private process servers.
In this category plaintiff claims $344 for private process servers. She explains
the difficulty she encountered serving Charlie Franzoi and defendant’s reluctance to
make Mr. Franzoi available for deposition. The taxation of costs statute, 28 U.S.C.
§ 1920 does not provide for the taxation of fees of private process servers, rather, it
provides only for the fees of the “clerk and marshal.” 28 U.S.C. § 1920(1). A
bankruptcy court gave extensive study to case law concerning the taxation of fees for
service of subpoenas by private process servers and concluded that in light of the
unambiguous language of 28 U.S.C. § 1920, these fees were non-taxable. D&B
Countryside, L.L.C. v. Newell (In Re: D&B Countryside, L.L.C.), 217 B.R. 72 (Bkrtcy.
E.D. Va. 1998). The Eighth Circuit has clearly taken this position. Crues v. KFC
Corp., 768 F.2d 230, 234 (8th Cir. 1985). (28 U.S.C. § 1920 contains no provision
for the use of special process servers, thus such costs are non-taxable); Uni-Systems,
- 32 -
Inc. v. Delta Airlines, 2002 WL 505914 at *2 (D.Minn.)) (same); United States Ex Rel
Evergreen Pipeline Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 172
(2nd Cir. 1996) (same); Cofield & Krumpler, 179 F.R.D. 510, 515 (E.D. Va. 1998)
(same).
Although the “modern trend” is to permit the recovery of private process
server fees, Crues is controlling in the Eighth Circuit and the court must deny the
private process service costs in this case. See, American Family Mut. Ins.Co. v.
Miell, 569 F. Supp. 2d 841, 860 (N.D. Iowa 2008); see also Bunda v. Potter, 2006
WL 266513 (N.D. Iowa) (“...while other courts have permitted the recovery of special
process fees, this court is compelled to follow Eighth Circuit precedent regardless of
the equities at play in the facts of this case.”).
Some courts, particularly the Ninth Circuit and several district courts, have
allowed as costs, fees for service of subpoenas for special process servers because the
United States Marshals Service no longer serves summons or subpoenas in most civil
cases.13
See Cofield, 179 F.R.D. at 515 and numerous cases cited therein.
Nevertheless, this court takes the position of the Cofield court and the Bankruptcy
Court in Newell: “There is no obvious policy reason why private process server fees
should not be recoverable, and it may simply be that Congress has not focused on the
13
Rule 45 of the Federal Rule of Civil Procedure was amended in
1991 to limit the United States Marshal’s duties in serving trial subpoenas. Congress
has not amended the taxation-of-costs statutes in the years since Rule 45 was
amended. This delay could suggest an intention by Congress to leave the statute
unchanged, Cofield, 179 F.R.D. at 516 n.6, or it could be interpreted as merely an
oversight to do so.
- 33 -
need to amend §1920 or to take account of the fact that United States Marshals no
longer serve subpoenas in civil case.” Newell, 217 B.R. at 76-77. “If this is the case,
Congress is free to amend the statute, but it is not the function of this court to rewrite
the statute. It is the court’s duty to apply the statute as written.” Cofield, 179 F.R.D.
at 516. Therefore, the private process server fee of $344 will not be allowed.
(3)
$200 for attendance fees and mileage fees.
Charlie Franzoi was not deposed; Jeff Terveer, Kim White and Angela Steward
did not testify. Plaintiff has charged $50 for each of these persons. The attendance
fee and mileage fee for Charlie Franzoi will be allowed. The other three charges will
be disallowed.
(4)
$595.21 for exemplification and copies of papers necessarily obtained
for use in the case.
The $416.53 for copying and binders for trial exhibits will be allowed. The
court finds that these items did ease the witnesses’ testimony and enhance “[t]he
smooth delivery of the trial to the jury.” See Plaintiff’s Memorandum in Support of
her Motion, Doc. 130 at p.12.
The court’s document display system, while
undoubtedly useful for displaying documents to the jury, is sometimes not adequate
for the witness to read effectively. These binders were therefore necessarily obtained
for use in the case.
The $108.49 for blowups/mounted exhibits will be allowed. They greatly
facilitated the comparison of several documents one to another which the court’s
document display system cannot efficiently do. They were therefore necessarily
obtained for use in the case.
- 34 -
The $10.49 for providing a courtesy copy to the court will be allowed.
Although usually expenses incurred in copying one’s own pleadings and motions for
filing in the court are not allowed, see Emmenegger, 33 F. Supp. 2d at 1133, in this
case the court’s Case Management Order specifically requested a courtesy copy. It
was therefore necessarily obtained for use in the case.
(5)
Mailings of $11.60 and $6.80 to the client.
§1920 does not allow postage as a taxable cost. See Hollenbeck v. Falstaff
Brewing Co., 605 F. Supp. 421, 439 (E.D. Mo. 1985). These amounts will be
disallowed.
As to the costs which defendant alleges were not associated with claims on
which plaintiff prevailed, the court has reviewed each of the challenged costs (some
of which are duplicative of costs which defendant argues should not be awarded
under § 1920) and finds that they are not so far removed from plaintiff’s FMLA claim
to be considered “not associated with.” Therefore of plaintiff’s requested $3,421.43,
the court will disallow the following:
$660 mediator
$344 special process server
$11.60 mailing to client
$6.80 mailing to client
$150 attendance fees
$3,421.43 - $1,172.40 = $2,249.03. Therefore, costs of $2,249.03 will be allowed.
Accordingly,
IT IS HEREBY ORDERED that defendant’s Motion for Judgment as a
Matter of Law is GRANTED in part and DENIED in part. [Doc. 132] It is DENIED
- 35 -
with regard to the Motion for Judgment as Matter of Law [Doc. 132-1] and
GRANTED with regard to the request for a written opinion [Doc. 132-2] and
DENIED as to defendant’s request that liquidated damages not be allowed. [Doc.
132-3]
IT IS FURTHER ORDERED that plaintiff’s Motion for Prejudgment
Interest and Reinstatement or, in the Alternative, Front Pay is GRANTED in part
and DENIED in part. [Doc. 135] It is GRANTED to the extent that prejudgment
interest will be awarded in the amount of $3,209 [Doc. 135-1] and DENIED with
regard to the request for reinstatement [Doc. 135-2] and GRANTED to the extent
that front pay will be awarded for one year in the amount of $61,700. [Doc. 135-3].
IT IS FURTHER ORDERED that plaintiff’s Motion for Attorney’s Fees is
GRANTED in part and DENIED in part. [Doc. 126] It is GRANTED to the extent
that attorney’s fees are awarded in the amount of $109,173 [Doc. 126-1].
IT IS FURTHER ORDERED that plaintiff’s Motion for Costs and Bill of
Costs is GRANTED in part and DENIED in part. [Doc. 127] It is GRANTED to the
extent that plaintiff is awarded costs in the amount of $2,249.03.
IT IS FURTHER ORDERED that an Amended Judgment will be entered
contemporaneously herewith which will reflect the following:
$206,500
Damages
$3,209
Prejudgment Interest
$209,709
Liquidated Damages
($206,500 + $3,209 = $209,709)
$61,700
Front Pay
- 36 -
$109,173
TOTAL
Attorney’s Fees
$2,249.03
_________
$592,540.03
Costs
/s/Mary Ann L. Medler
MARY ANN L. MEDLER
UNITED STATES MAGISTRATE JUDGE
Dated this 18th
day of May, 2011.
- 37 -
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