Wilson v. Port City Air, Inc. et al

Filing 106

ORDER granting in part 101 Motion for Attorney Fees; denying 102 Motion to Amend. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
George Wilson
v.

Civil No. 13-cv-129-LM
Opinion No. 2014 DNH 262

Port City Air, Inc.
O R D E R
George Wilson won a jury verdict against Port City Air,
Inc. (“Port City”) on claims for retaliation under Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New
Hampshire’s Law Against Discrimination, N.H. Rev. Stat. Ann.
(“RSA”) § 354-A.

Before the court are Wilson’s motions for: (1)

either additur or a new trial on damages; and (2) attorneys’
fees and costs.

Port City objects to Wilson’s first motion in

its entirety and also objects to the amount of fees and costs
Wilson seeks.

The court heard oral argument on Wilson’s motions

on December 1, 2014.

For the reasons that follow, Wilson’s

motion for additur or a new trial is denied, and his motion for
attorneys’ fees is granted in part.
I. Background
Wilson initially sued four defendants in 20 counts.
Against Port City, he asserted: (1) three claims for racial

discrimination and two claims for retaliation under RSA 354-A;1
(2) three claims for racial discrimination and two claims for
retaliation under Title VII;2 and (3) a state common-law claim
for wrongful discharge.

He also asserted nine claims against

Port City employees Robert Jesurum, Ned Denney, and Adam Clark,
but those claims were all dismissed before trial.

At trial,

Wilson prevailed on identical state and federal retaliation
claims that “Port City suspended and/or discharged [him] in
retaliation for filing a complaint with the New Hampshire
Commission for Human Rights [HRC],” Verdict Form (doc. no. 99)
1, but Port City prevailed on all of Wilson’s other claims,
including his claim for wrongful discharge, see id. at 2.

The

jury awarded Wilson $15,000 in compensatory damages for pain,
suffering, and mental anguish resulting from his retaliatory
suspension.

Two of the discrimination claims were based upon a
hostile-work-environment theory, and the third was based upon a
disparate-treatment theory. One retaliation claim arose from a
demotion resulting from Wilson’s having made an internal
complaint about the work environment at Port City, and the other
arose from Wilson’s suspension with pay and his ultimate
discharge, resulting from his having filed a charge with the New
Hampshire Commission for Human Rights.
1

Wilson’s Title VII claims were virtually identical to his
claims under RSA 354-A.
2

2

II. Additur
Wilson argues that the court committed legal error by: (1)
excluding evidence of lost wages; (2) barring him from arguing
lost wages to the jury; and (3) failing to instruct the jury on
lost wages.

For that reason, he asks the court to award him

$21,956 in lost wages, under the theory of additur, or to
schedule a new trial on damages.
The problem with Wilson’s request is that he did not
prevail on any claim for which he could have recovered lost
wages.

He prevailed on a claim that he was suspended in

retaliation for filing a charge with the HRC, and it was
undisputed that he was suspended, with pay, until he was
discharged.

Because Wilson’s suspension resulted in no loss of

pay, he could not recover lost wages as a remedy for a
retaliation claim based upon his suspension.

Such a remedy

might be appropriate for a retaliation claim based upon
termination.

But, because Port City prevailed on Wilson’s

wrongful-termination claim, it is clear that the jury did not
find that his discharge was retaliatory.

See Porter v. City of

Manchester, 151 N.H. 30, 38 (2004) (explaining that to prove
wrongful termination, “the plaintiff must show that the
defendant was motivated by bad faith, malice, or retaliation in
terminating the plaintiff’s employment”) (quoting Cloutier v.

3

Great Atl. & Pac. Tea Co., 121 N.H. 915, 921 (1981)) (emphasis
added).

Thus, regardless of whether the court was correct in

determining that Wilson failed to produce sufficient evidence to
permit a reasonable jury to make a non-speculative award of lost
wages, his motion for additur or a new trial on damages,
document no. 102, must be denied.
III. Attorneys’ Fees
The parties agree that Wilson is entitled to some amount of
attorneys’ fees, pursuant to 42 U.S.C. § 2000e-5(k).3

They

further agree that the court should use the “lodestar” approach
to calculate the amount of the award.
In fashioning the lodestar, the first step is to
calculate the number of hours reasonably expended by
the attorneys for the prevailing party, excluding
those hours that are “excessive, redundant, or
otherwise unnecessary.” Hensley v. Eckerhart, 461
U.S. 424, 434 (1983). The second step entails a
determination of a reasonable hourly rate or rates — a
determination that is often benchmarked to the
prevailing rates in the community for lawyers of like
qualifications, experience, and competence. See [Gay
Officers Action League v. Puerto Rico], 247 F.3d
[288,] 295 [(1st Cir. 2001)]. The product of the
hours reasonably worked times the reasonable hourly
rate(s) comprises the lodestar.
In Central Pension Fund of the International Union of
Operating Engineers & Participating Employers v. Ray Haluch
Gravel Co., 745 F.3d 1 (1st Cir. 2014), where “[n]either party
. . . argued that the [plaintiffs’] right to attorneys’ fees
under [state law] differ[ed] in any material respect from
[their] corresponding right under [federal law],” id. at 4, the
court of appeals applied the federal law applicable to
attorneys’ fees, see id. at 5. So too here.
3

4

Cent. Pension Fund of the Int’l Union of Operating Eng’rs &
Participating Emp’rs v. Ray Haluch Gravel Co., 745 F.3d 1, 5
(1st Cir. 2014) (parallel citations omitted).

Port City does

not contest the hourly rates Wilson’s attorneys have used to
calculate the lodestar.

Rather, the parties’ disagreement

concerns Port City’s arguments that the court should: (1)
exclude from the lodestar all of the fees and costs generated by
two categories of legal work and a portion of the fees generated
by a third category of work; (2) deduct fees associated with
Wilson’s claims against Robert Jesurum, Edward Denney, and Adam
Clark; and (3) adjust the lodestar downward.
In his motion, Wilson asks the court to award him
$201,884.70 in attorney’s fees and $4,339.89 in costs.4

If the

court were to apply all of the exclusions, deductions, and
adjustments that Port City proposes, Wilson would receive an
award for fees and costs in the neighborhood of just over
$20,000.

The amount to which Wilson is entitled lies between

the amount he seeks and the amount to which Port City says he is
entitled.

The court begins its analysis by sketching the

The figures in Wilson’s motion are different from these.
These figures reflect a shifting of one item from the category
of costs to the category of fees, for reasons described in
Section III.B.1.
4

5

relevant law and then turns to Port City’s proposed lodestar
exclusions, deductions, and adjustments.
A. The Relevant Law
The court begins with general principles.

Congress has

enacted fee-shifting statutes in a number of areas “in order to
ensure that federal rights are adequately enforced.”
Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010).

Perdue v.

More

specifically, federal fee-shifting statutes encourage plaintiffs
of limited means to bring claims that, if successful, would
vindicate rights of importance to the public at large but would
not necessarily result in an award of damages that is adequate
to attract counsel in the private market for legal services.
See City of Riverside v. Rivera, 477 U.S. 561, 576-81 (1986);
c.f. Diaz v. Jiten Hotel Mgmt., Inc., 741 F.3d 170, 178 (1st
Cir. 2013) (discussing purpose of Massachusetts fee-shifting
statute, which is largely similar to Title VII fee-shifting
provision).

To the end of ensuring that such claims are

litigated, the “reasonable fee” referred to in most federal feeshifting statutes “is a fee that is sufficient to induce a
capable attorney to undertake the representation of a
meritorious . . . case,” Perdue, 559 U.S. at 552 (citations
omitted) but not so large that it produces a windfall for the
attorney, see id.

6

Turning to the mechanics of requesting an award of fees,
“[t]he prevailing party has the burden of proving the
reasonableness of the hours claimed,” Torres-Rivera v. O’NeillCancel, 524 F.3d 331, 340 (1st Cir. 2008) (citation omitted).
Consequently, “the failure of a fee-seeker to submit reasonably
explicit time records may have deleterious consequences on the
amount of fees awarded,” Burke v. McDonald, 572 F.3d 51, 63 (1st
Cir. 2009) (citation and internal quotations marks omitted).
When determining the number of hours reasonably expended, “[t]he
district court . . . should exclude from this initial fee
calculation hours that were not reasonably expended.”

Hensley,

461 U.S. at 434 (citation and internal quotation marks omitted).
Thus, “[c]ounsel 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.”

Id.

After the lodestar has been calculated, by multiplying a
“reasonable [number of] hours [by] a reasonable rate[,] . . .
[t]here remain other considerations that may lead the district
court to adjust the fee upward or downward.”

Hensley, 461 U.S.

at 434 (internal quotation marks and footnote omitted).
factors include:

7

Those

(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite
to perform the legal service properly; (4) the
preclusion of employment by the attorney due to
acceptance of the case; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the
circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability
of the attorneys; (10) the “undesirability” of the
case; (11) the nature and length of the professional
relationship with the client; and (12) awards in
similar cases. [Johnson v. Ga. Highway Express,
Inc.,] 488 F.2d [714,] 717–719 [(5th Cir. 1974)].
Hensley, 461 U.S. at 430 n.3.

However, “many of [the so-called

Hensley] factors usually are subsumed within the initial
calculation of hours reasonably expended at a reasonable hourly
rate.”

Id. at 434 n.9 (citing Copeland v. Marshall, 641 F.2d

880, 890 (D.C. Cir. 1980)).
“[T]he ‘results obtained’ in litigation are a ‘preeminent
consideration in the fee-adjustment process.’”

Diaz, 741 F.3d

at 178 (quoting Joyce v. Town of Dennis, 720 F.3d 12, 27 (1st
Cir. 2013)); see also Hensley, 461 U.S. at 434 (explaining that
the “results obtained” factor “is particularly crucial where a
plaintiff is deemed ‘prevailing’ even though he succeeded on
only some of his claims for relief”).

The term “results

obtained” covers a good bit of ground:
It can refer to a plaintiff’s success claim by claim,
or to the relief actually achieved, or to the societal
importance of the right which has been vindicated, or
to all of these measures in combination. We think
that the last meaning is the best choice, and that, as

8

a consequence, all three types of “results”
potentially bear upon the amount of an ensuing fee
award.
Joyce, 720 F.3d at 27 (quoting Coutin v. Young & Rubicam P.R.,
Inc., 124 F.3d 331, 338 (1st Cir. 1997)); see also Burke, 572
F.3d at 65 n.11 (“After computing the lodestar, the district
court would have been within its discretion to consider an
adjustment — upward or downward — based on the results obtained
by taking into account Burke’s claim-by-claim success, the
relief obtained, and the societal importance of the right
vindicated.”).
With regard to the first aspect of results obtained, claimby-claim success, there are cases in which “a plaintiff . . .
present[s] in one lawsuit distinctly different claims for relief
that are based on different facts and legal theories.”
461 U.S. at 434.

Hensley,

In such a situation, “even where the claims

are brought against the same defendants . . . counsel’s work on
one claim will be unrelated to his work on another claim, [and]
work on an unsuccessful claim cannot be deemed to have been
‘expended in pursuit of the ultimate result achieved.’”

Id. at

434-35 (quoting Davis v. County of L.A., No. 73-63-WPG, 1974 WL
180, at *3 (C.D. Cal. June 5, 1974)).

When that happens, “no

fee may be awarded for services on the unsuccessful claim.”
Hensley, 461 U.S. at 435; see also Diaz, 741 F.3d at 173

9

(affirming district court’s decision to reduce lodestar “by
refusing to make [defendant] pay for attorney’s fees incurred by
[plaintiff] in the pursuit of unsuccessful and largely
independent claims”); Burke, 572 F.3d at 63 (“It is wellestablished that fees are appropriately excluded from the
lodestar when different claims for relief are not
interconnected, that is, when the claims rest on different facts
and legal theories”) (quoting Bogan v. City of Bos., 489 F.3d
417, 428-29 (1st Cir. 2007)) (additional citation, punctuation,
and internal quotation marks omitted).
But in cases where “the plaintiff’s claims for relief . . .
involve a common core of facts or [are] based on related legal
theories,” Hensley, 461 U.S. at 435, such that “it [is]
difficult to divide the hours expended on a claim-by-claim
basis,” id., fees may be awarded for work devoted to issues on
which the plaintiff did not prevail, see id.

Procedurally,

“[i]f the fee-seeker properly documents her claim and plausibly
asserts that the time cannot be allocated between successful and
unsuccessful claims, it becomes the fee-target’s burden to show
a basis for segregability.”

Burke, 572 F.3d at 63 (quoting

Lipsett [v. Blanco], 975 F.2d [934,] 941, [(1st Cir. 1992)])
(emphasis omitted).

10

With regard to the second aspect of results obtained, often
referred to as “proportionality,” it is well established that a
court must “consider the relationship between the extent of
success and the amount of the fee award,” Hensley, 461 U.S. at
438, and may adjust a lodestar downward if the two are
disproportionate, see Central Pension, 745 F.3d at 6.

Such an

adjustment may be warranted under several circumstances,
including a request for fees that dwarfs a plaintiff’s recovery,
see id. at 7, or an award of damages that is dwarfed by the
amount of damages the plaintiff sought to recover, see id.

At

the same time, however, “the rigid use of proportionality as the
sole determinant of as lodestar-based fee award” is strongly
disfavored, id. at 6-7 n.3.
With regard to the third aspect of results obtained, the
societal importance of the right vindicated, the court of
appeals has pointed out that statutory
[f]ee-shifting provisions in general reflect a
legislative judgment that “‘the public as a whole has
an interest in the vindication of the rights conferred
by the statutes . . . over and above the value of a .
. . remedy to a particular plaintiff.’” City of
Riverside v. Rivera, 477 U.S. 561, 574 (1986) (quoting
Hensley, 461 U.S. at 444 n.4 (Brennan, J., concurring
in part and dissenting in part)).
Joyce, 720 F.3d at 31 (parallel citations omitted).

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B. Exclusions from the Lodestar
Port City argues that the court should exclude from the
lodestar: (1) all the fees and costs that resulted from
retaining and working with expert witness Julie Moore; (2) all
the fees that resulted from Wilson’s attorneys’ efforts to
reschedule court events to accommodate the personal schedule of
Attorney Matthew Broadhead; and (3) some of the fees associated
with preparing for oral argument on Port City’s motion for
summary judgment.

The court agrees.

1. Julie Moore
In his motion for attorney’s fees, Wilson seeks to recover:
(1) the $8,693.50 Attorney Broadhead billed for the time he
spent working with Julie Moore, Esq., whom he intended to call
as an expert witness; and (2) the amount Moore billed for her
work on the case, including the preparation of her expert
report.

Wilson characterizes the $13,222.62 his counsel paid

Moore as costs, but given the statutory definition of taxable
costs, see 28 U.S.C. § 1920, Wilson’s counsel’s payments to
Moore are more properly placed under the heading of attorneys’
fees, see Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997,
2006 (2012) (describing “costs” as “relatively minor, incidental
expenses,” the assessment of which “often is merely a clerical
matter that can be done by the clerk of the court,” and that are

12

distinguishable from “the nontaxable expenses borne by litigants
for attorneys, experts, consultants, and investigators”); see
also 42 U.S.C. § 2000e-5(k) (empowering trial court to award, in
its discretion, “a reasonable attorney’s fee (including expert
fees)”).
Regarding Moore’s role in this case, Wilson characterized
her, in his objection to Port City’s motion to exclude her
expert testimony, as a “Human Resources and legal consultant
retained by employers to investigate claims of discrimination
and to provide anti-discrimination training to employees.”
no. 52-1, at 6.

Doc.

Wilson further stated that

Moore’s experience and training as an attorney and as
a certified Human Resource consultant provides her
with unique and specialized knowledge that will assist
the jury in understanding industry standards with
respect to how employers implement measures to prevent
discrimination in the workplace and how to investigate
complaints of harassment.
Id. at 7.
The question of the steps an employer should take to
prevent harassment in the workplace is relevant to countering a
defendant’s assertion of the Faragher-Ellerth defense5 to a claim
that an employee has been subjected to a hostile work
environment created by his or her supervisors (a claim that

See Faragher v. City of Boca Raton, 524 U.S. 775 (1998);
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).
5

13

Wilson dropped just before the jury charge).

As Judge DiClerico

has explained, opinions on that topic have no proper place in
supporting a retaliation claim such as the ones on which Wilson
did prevail.

See Cook v. CTC Commc’ns Corp., No. 06-cv-58-JD,

2007 WL 3028415, at *3 (D.N.H. Oct. 15, 2007).

Beyond that,

Moore’s opinion was excluded as inadmissible.

Because Moore’s

opinion was irrelevant to any claim on which Wilson prevailed
and was unnecessary to the litigation of Wilson’s successful
claims, Wilson is entitled to no fees associated with retaining
or working with Moore.

Accordingly, the court excludes from the

lodestar $21,107.62 in attorney’s fees devoted Moore’s work and
Attorney Broadhead’s work with Moore.6
Finally, the court notes that at oral argument, Wilson made
the quite plausible suggestion that not all of Moore’s work on
this case was directed toward her expert opinions but, rather,
involved her actions as a consultant and/or a general litigation
advisor.

Unfortunately, the billing records Wilson submitted

are not sufficiently detailed to allow the court to distinguish
between fees generated by Moore’s role as an expert witness and

Port City seeks an exclusion of $21,916.12 for these
categories of work, but approximately 5.4 hours of Attorney
Broadhead’s work that Port City identifies as having been
associated with Moore was actually devoted to matters other than
those in which Moore was involved, which makes them compensable.
6

14

her role as a litigation consultant.

Because imprecision in the

billing records cannot inure to Wilson’s benefit, see Burke, 572
F.3d at 63, and because the court cannot just make up a number
of hours to assign to Moore’s purported role as a litigation
consultant, see Torres-Rivera, 524 F.3d at 340, the court is in
no position to award fees for Moore’s service in such a
capacity.
2. Wilson’s Attorney’s Personal Needs
Port City asks the court to exclude from the lodestar
$2,282.75 in attorneys’ fees generated by the drafting and
filing of two motions to continue and one motion to extend a
deadline, all of which were necessary to accommodate Attorney
Broadhead’s personal travel and the birth of his child.
It would be inappropriate for an attorney to bill his or
her client for the costs of moving for a continuance or an
extension of a deadline necessitated by the attorney’s own
personal needs.

Thus, in this case, it would be inappropriate

to order Port City to pay fees for those services.

See Hensley,

461 U.S. at 434.
The problem here is the amount of time Port City says
Wilson’s attorneys devoted to the motions at issue.

15

The

relevant billing records suffer from imprecision resulting from
both mixed entries7 and a general lack of specificity.

As an

example of a mixed entry, on March 20, 2014, Wilson’s attorneys
charged him for 2.5 hours devoted to “[w]ork in file re: omitted
pages, telephone conference with Court, telephone conference
with opposing counsel and draft continuance.”

Pl.’s Mot. for

Fees, Rockefeller Aff., Ex. A (doc. no. 101-3), at 21.

Port

City asks the court to exclude the entire 2.5 hours as having
been devoted to seeking a continuance.

But that cannot be

correct, given the entry’s inclusion of tasks that bear no
identified relationship to seeking a continuance and that must
have consumed some of the 2.5 hours.
To solve the problems created by mixed entries, this court
adopts a modified version the method outlined by Judge Young in
Wilson v. McClure, 135 F. Supp. 2d 66 (D. Mass. 2001).

When

confronted with a mixed entry in a case involving compensable
“core” and non-compensable “non-core” tasks, Judge Young wrote:
“[I]f an attorney spent 12.0 hours on four tasks, three of which
were core work and one of which was non-core work, and the

A “mixed entry” is one that lists a single number of
billable hours for multiple tasks. See Silva v. Nat’l Telewire
Corp, No. 99-219-D, 2001 WL 1609387, at *4 (D.N.H. Dec. 12,
2001).
7

16

attorney did not allocate her time among the tasks, this Court
would designate 9.0 hours as core hours and 3.0 hours as noncore hours.”

Id. at 73.

Judge Young’s approach, of course, presumed that each task
listed in his hypothetical multiple entry was described in a way
that would allow a determination of whether it was a core task
or a non-core task.

Here, in addition to the problems resulting

from mixed entries, the court faces the problem of tasks that
are described too generically to permit the court to discern
whether the billed work was compensable or non-compensable.
Given the legal principle that billing imprecision may not inure
to the benefit of the fee applicant, see Burke, 572 F.3d at 63,
the court adjusts Judge Young’s method in the following way:
when a generic item appears as part of a mixed entry, the court
will construe that entry in a way that gives Port City the
benefit of Wilson’s imprecision.
Turning back to the billing entry quoted above, which
identifies four tasks, the first one, “[w]ork in file re:
omitted pages,” is plainly not directed to obtaining a
continuance.

The fourth task, “draft continuance,” is self-

evidently directed to obtaining a continuance.

The second and

third tasks, “telephone conference with Court,” and “telephone

17

conference with opposing counsel,” are ambiguous.

As that

ambiguity cannot inure to Wilson’s benefit, see Burke, 572 F.3d
at 63, the court presumes that those telephone conferences were
related to the request for a continuance.

Thus, the court

allocates 1.872 of the 2.5 hours billed in the March 20, 2014,
entry to the uncompensable task of seeking a continuance.

After

applying the same method to the remainder of the entries that
Port City links to this task, and eliminating non-mixed entries
such as “[w]ork on file,” Pl.’s Mot. for Fees, Rockefeller Aff.,
Ex. A (doc. no. 101-3), at 22, that demonstrate no relationship
to legal work related to accommodating Attorney Broadhead’s
personal needs, the court excludes $1,281.25 from the lodestar.
3. Preparation for Oral Argument
Port City argues that Wilson’s attorneys billed for an
excessive amount of time, 40.33 hours (billed at $6,137),
devoted to preparing Attorney Broadhead for the oral argument on
its motion for summary judgment.

The court agrees.

Of the 40.33 hours of preparation time for which Wilson
seeks fees, 36.83 were billed by Attorney Broadhead.

The

remaining 3.5 hours were billed by Attorney Sarah Lavoie in the
following entry: “Conference with Matthew T. Broadhead,

18

Christine M. Rockefeller and John E. Durkin8 re: Attorney
Broadhead’s oral argument and review pleadings.”

Pl.’s Mot. for

Fees, Rockefeller Aff., Ex. A (doc. no. 101-3), at 23.

Those

40.33 hours of preparation time were in addition to
approximately 80 hours that Attorney Broadhead billed for
researching and drafting Wilson’s objection to Port City’s
summary-judgment motion.

There is a strong argument to be made

that 80 hours for drafting an objection to summary judgment is
excessive.

See Dixon v. Int’l Bhd. of Police Officers, 434 F.

Supp. 2d 73, 82 (D. Mass. 2006) (ruling that 32.8 hours for
opposing summary-judgment motion was excessive, and awarding
fees for 20 hours of work on that task).

But, Port City does

not challenge the 80 hours billed in this case, and the court is
not inclined to give Port City an argument it has not made.
Still, approximately 40 hours to prepare for a hearing on a
motion that Wilson had already devoted 80 hours to opposing
seems too much.

In light of all the work that went into

John E. Durkin is a personal friend and is on my recusal
list. Prior to this mention of Attorney Durkin’s name, I had no
knowledge that he was in any way involved in this case. The
billing records also mention two other conferences in which
Attorney Durkin was a non-billing participant. Wilson is not
seeking any fees for Attorney Durkin’s participation in any of
those conferences, nor does Wilson attempt to use Attorney
Durkin’s involvement to lend credibility to his request for
fees. I have concluded that these three references to Attorney
Durkin do not raise any concerns regarding either my actual bias
or the appearance of bias.
8

19

preparing the written objection to Port City’s summary-judgment
motion, it is reasonable to award Wilson fees for another 20
hours of work, at Attorney Broadhead’s rate of $150 per hour, to
prepare for the hearing.

That results in a reduction of the

lodestar by $3,137.
To sum up, the court excludes $25,525.87 from the lodestar
due to billings for excessive and/or unnecessary work associated
with: (1) Julie Moore; (2) accommodating Attorney Broadhead’s
personal schedule; and (3) opposing Port City’s summary-judgment
motion.
C. Claims against Jesurum, Denney, and Clark
In both his original complaint and his first amended
complaint, Wilson asserted four claims against Robert Jesurum,9
four claims against Ned Denney,10 and one claim against Adam
Clark.11

Judge DiClerico dismissed the claims against Jesurum

and Denney, for failure to state a claim on which relief can be

Those four claims, brought under RSA 354-A, include a
hostile-work-environment claim (Count XII), a disparatetreatment claim (Count XV), and retaliation claims based upon
two different incidents of protected conduct (Counts XIII and
XIV).
9

Those four claims, brought under RSA 354-A, include a
hostile-work-environment claim (Count XVI), a disparatetreatment claim (Count XIX), and two retaliation claims (Counts
XVII and XVIII).
10

The claim against Clark, Count XX, was for creating a
hostile work environment.
11

20

granted, see Fed. R. Civ. P. 12(b)(6), and I dismissed the claim
against Clark on the same grounds.

The essential basis for all

three dismissals was that none of the three individual
defendants was Wilson’s employer, and RSA 354-A only provides
for liability against employers.
Wilson seeks $11,058 in attorney’s fees related to
prosecuting his claims against Jesurum, Denney, and Clark.

Port

City asks the court to exclude those fees from the lodestar, as
unnecessary, or to adjust the lodestar by deducting those fees
from it, due to Wilson’s lack of success on his claims against
those defendants.

Under either analytical approach, the court

agrees that Wilson is not entitled to the fees at issue.
The court is unable to articulate any reason why it would
be reasonable to make Port City pay attorneys’ fees generated by
Wilson’s failed claims against Jesurum, Denney, and Clark.

To

be sure, there are legal principles that can, under the proper
circumstances, support an award of fees for a plaintiff’s
unsuccessful prosecution of a claim that was interconnected with
a successful claim against the same defendant.

See Hensley, 461

U.S. at 435.
But here, if Wilson had prevailed on his claims against
Jesurum, Kenney, or Clark, he might be entitled to fees from
those defendants, but he could not collect fees from Port City

21

on account of his success against the individual defendants.

If

Wilson could not collect fees from Port City after prevailing
against Jesurum, Kenney, or Clark, he surely cannot collect fees
from Port City after losing his claims against those three
defendants.

Cf. Burke, 572 F.3d at 63 (affirming district

court’s decision to exclude from the lodestar fees generated by
prosecuting “unsuccessful claims, each of which was made against
other defendants [i.e., defendants other than the one who was
liable for attorneys’ fees], premised on significantly different
legal theories, or both”).

The court’s denial of fees for

pursuing claims against the three individual defendants is
further warranted by the fact that the only issue on which
Wilson engaged with those three defendants, i.e., whether an
employee can bring a claim against a fellow employee under RSA
354-A, is entirely unconnected to any issue that Wilson
litigated or could have litigated against Port City.
As for the amount of fees that must be deducted from the
lodestar, the court uses the same analytical framework it
employed in Section III.B.2.

Based upon that analysis, the

court deducts from the lodestar the $9,134.50 in attorneys’ fees
that were generated by Wilson’s pursuit of claims against
Jesurum, Denney, and Clark.

22

D. Adjustment to the Lodestar
In his motion for fees, and in reliance upon Díaz-Rivera v.
Rivera-Rodríguez, 377 F.3d 119 (1st Cir. 2004), Wilson argues
that he is entitled to the entire lodestar because he prevailed
on some of his claims, and all the claims he asserted, both
successful and unsuccessful, arose out of a common core of facts
and related legal theories.

In Díaz-Rivera, the court of

appeals affirmed the district court’s decision to reduce the
lodestar by 33 percent, on account of the plaintiff’s lack of
success on some of his claims.

See 377 F.3d at 127.

The court

of appeals explained its decision this way:
The district court’s rationale for [reducing the
lodestar by 33 percent] is indicated by its citation
to Andrade v. Jamestown Hous. Auth., 82 F.3d 1179,
1191 (1st Cir. 1996), in which this court summarized
the Supreme Court’s holding in Hensley:
Hensley makes clear that where multiple
claims are interrelated and a plaintiff has
achieved only limited success, awarding her
the entire lodestar amount would ordinarily
be excessive.
Id. at 1191.
Díaz-Rivera, 377 F.3d at 126.

Thus, Díaz-Rivera does not

support Wilson’s argument that he is entitled to an award of
fees equaling an unadjusted lodestar.
Rather, as the Supreme Court explained in Hensley, a fully
compensatory fee should be awarded “[w]here a plaintiff has

23

obtained excellent results.”

461 U.S. at 435 (emphasis added).

Here, while Wilson did prevail on two claims, he did not obtain
excellent results, given the 18 claims on which he did not
prevail and the difference between the approximately $410,000 in
damages he identified in his pre-trial statement and the $15,000
he ultimately recovered.

By any objective measure, Wilson’s

success was “limited in comparison to the scope of the
litigation as a whole.”
(citation omitted).
is warranted.

Central Pension, 745 F.3d at 7

Thus, a downward adjustment of the lodestar

The process of adjustment, in turn, is guided by

the Hensley factors.
In the discussion that follows, the court begins with an
analysis of the preeminent Hensley factor, results obtained,
which itself has three distinct components: claim-by-claim
success, proportionality, and societal importance.

This

discussion concludes with an analysis of the second and third
Hensley factors, i.e., novelty and difficulty (factor 2) and
skill required (factor 3).

Neither party has addressed any of

the remaining Hensley factors, and so the court trains its focus
on those factors on which either or both of the parties have
engaged.

24

1. Results Obtained: Claim-by-Claim Success
In his motion for fees, Wilson has properly documented his
claim, and has made a plausible assertion that the time claimed
is not amenable to allocation between claims that were
successful and claims that were not.

See Burke, 572 F.3d at 63.

Thus, with respect to this aspect of the results-obtained
factor, Port City has the burden of showing that there is a
basis for segregability.

See id.

It has not carried that

burden.
On the side of finding Wilson’s claims not to be
segregable, Wilson’s hostile-work-environment claims and his
retaliation claims, which arose in part from a formal complaint
about his work environment, involve a set of common facts, i.e.,
the facts concerning Wilson’s work environment.

While Wilson

did not have to prove an actionable hostile work environment to
prevail on his retaliation claim, see Trainor v. HEI
Hospitality, LLC, 699 F.3d 19, 26 (1st Cir. 2012) (citing
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991)),
there can be no denying that offering evidence on that
environment substantially assisted the jury in making an
informed decision on the retaliation claims.

Thus, Wilson’s

hostile-work-environment claims and his retaliation claims are
not “largely independent.”

Diaz, 741 F.3d at 173 (finding that

25

successful claims under Federal Age Discrimination in Employment
Act and Massachusetts antidiscrimination law were segregable
from claims for violating Massachusetts Civil Rights Act,
wrongful termination, intentional infliction of emotional
distress, and defamation).
segregation.

That supports an argument against

Cf. Rand v. Town of Exeter, N.H., No. 11-cv-55-LM,

2014 WL 4922977, at *10 (D.N.H. Sept. 30, 2014) (declining to
deduct from the lodestar fees that Title VII plaintiff incurred
in prosecuting assault claim against Town employee, where
successful retaliation claim arose from complaints about the
assault).

Moreover, while Port City correctly points out that

Wilson prevailed on only one of his three retaliation theories,
it is also the case that all of Wilson’s retaliation claims were
based on the very same legal theory, which also supports an
argument against segregation.

See Hensley, 461 U.S. at 435.

Port City’s strongest segregability argument is that
because it never challenged the “protected conduct” element of
Wilson’s retaliation claims, legal work directed to the alleged
hostile work environment had nothing to do with the retaliation
claims.12

That argument is not persuasive, because: (1) the

Port City’s argument goes like this. To prove a
retaliation claim, a plaintiff must show that he engaged in
protected conduct. See Garayalde-Rijos v. Mun’y of Carolina,
747 F.3d 15, 25 (1st Cir. 2014). Protected conduct, in turn,
includes opposing unlawful discrimination, such as allowing a
12

26

primary protected conduct to which Port City refers in its
memorandum of law is Wilson’s internal complaint rather than his
HRC charge; and (2) while Port City accurately reports that the
protected-conduct element of Wilson’s retaliation claim was
taken from the jury, he has not shown that that element was
conceded, vis à vis Wilson’s retaliatory-suspension claim, at a
point early enough in the litigation process to render legal
work on the hostile-work-environment claims entirely unconnected
to the retaliation claims.
To sum up, Port City has not carried its burden of showing
a basis for segregating Wilson’s unsuccessful discrimination and
retaliation claims from his successful retaliation claims.
Still, he prevailed on only two of the 20 claims he originally
brought, and only two of the 11 he took to trial.

Thus, even

without showing a basis for segregability, Port City has
established that it is entitled to some downward adjustment in
the lodestar, due to Wilson’s lack of success.

See Díaz-Rivera,

377 F.3d at 126 (“where multiple claims are interrelated and a
plaintiff has achieved only limited success, awarding her the

hostile work environment to exist. See id. When a defendant
concedes that a plaintiff has established the protected-conduct
element, the plaintiff has no need to demonstrate that the
conditions he opposed amounted to unlawful discrimination.
That, in turn, renders legal work directed toward those
conditions irrelevant, segregable, and uncompensable.
27

entire lodestar amount would ordinarily be excessive”) (quoting
Andrade, 82 F.3d at 1191).

The court addresses the amount of

that adjustment in Section III.D.5.
2. Results Obtained: Proportionality
There is substantial disproportionality in this case.
Wilson initially sought more than $200,000 in costs and fees,
and even after the deductions described above, the lodestar
still stands at a little over $167,000.
a recovery of $15,000.

That is a large fee for

Even more disproportionate is the amount

of Wilson’s recovery in comparison with the $410,000 in damages
he sought.

That disproportionality supports, but does not

compel, a downward adjustment of the lodestar.

See Central

Pension, 745 F.3d at 7 (declining to hold that the district
court abused its discretion by adjusting the lodestar downward
from $84,656.50 to $18,000 where plaintiff recovered $26,897.41
of the $200,000 in damages it claimed, and sought $143,600.44 in
attorneys’ fees for its recovery of $26,897.41); but see Diaz,
741 F.3d at 179 (rejecting argument that trial court committed
legal error by failing to make award of attorney’s fees strictly
proportional to award of damages and affirming district court’s
award of more than $100,000 in attorneys’ fees in case where
jury awarded less than $10,000 in damages).

28

3. Results Obtained: Societal Importance
Finally, the societal importance of the right Wilson
vindicated is considerable.

He might not have been the

paradigmatic “private attorney general” who brings claims under
42 U.S.C. § 1983 against a person acting under color of state
law, but he was not far off.

Plainly, the value of his victory

over Port City extends beyond his own personal interests and the
money judgment he received.

Cf. Diaz, 741 F.3d at 178-79

(explaining that societal importance of plaintiff’s success on
state-law discrimination claim was established by district
court’s “substantial order clarifying the stray remarks doctrine
. . . as well as a published First Circuit opinion holding that
mixed-motive analysis applies to Massachusetts age
discrimination claims”).

Here, Wilson received a judgment that

Port City treated him unlawfully, a judgment that put Port City
on notice that it cannot treat other employees the way it
treated Wilson.

And, given that Wilson’s successful retaliation

claims arose from actions Port City took in response to the
charge he filed with the HRC, his victory has the added value of
encouraging others similarly situated to file charges with the
HRC without fear of retaliation.

29

That extends the value of his

victory to workers beyond the confines of Port City,13 and well
beyond the amount of his money judgment.

Indeed, of all the

claims that Wilson brought against Port City, the retaliation
claim based upon his filing a charge with the HRC has the
broadest societal reach of all.

That societal reach, in turn,

in conjunction with the Title VII fee-shifting provision, places
the right that Wilson vindicated squarely within the realm of
“polic[ies] that Congress considered of the highest priority.”
Fox v. Vice, 131 S. Ct. 2205, 2213 (2011) (quoting Newman v.
Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)).

Thus, the

societal importance of the right Wilson has vindicated weighs in
favor of limiting the downward adjustment of the lodestar.
4. Hensley Factors Two & Three
Having addressed the preeminent Hensley factor, results

13

In dictum in Blum v. Stenson, the Supreme Court expressed
disbelief “that the number of persons benefited is a
consideration of significance in calculating fees under [42
U.S.C.] § 1988,” 465 U.S. 886, 900 n.9 (1984) (emphasis in the
original), because “[p]resumably, counsel will spend as much
time and be as diligent in litigating a small class of people,
or, indeed, in protecting the civil rights of a single
individual,” id. But, the Court made that statement in a case
in which the plaintiff sought attorney’s fees in excess of the
lodestar, rather than in a case such as this one, in which the
question before the court is how much to reduce the lodestar.
Thus, in Blum, the court’s concern was avoiding an impermissible
windfall to the plaintiff’s attorneys, see Perdue, 559 U.S. at
552, while in this case, the court’s concern is giving competent
attorneys an adequate incentive to prosecute meritorious claims
such as the ones on which Wilson prevailed.
30

obtained, the court turns to the second and third factors,
novelty and difficulty of the questions litigated, and the skill
required to litigate those questions properly.
out that this was a complex case.

Wilson points

While there was not much

novelty in Wilson’s retaliation claims, the court can readily
agree that Title VII in general, Title VII retaliation, and the
embedded issue of pretext are complex areas of the law which
require considerable skill to litigate properly.

However, the

second and third Hensley factors are already reflected in the
reasonable hourly rate, see Perdue, 559 U.S. at 553 (citing Blum
v. Stenson, 465 U.S. 886, 898 (1984); Pennsylvania v. Del.
Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566
(1986)), and, as result, should have no bearing on any
adjustment that must be made to the lodestar, see Perdue, 559
U.S. at 553 (citing City of Burlington v. Dague, 505 U.S. 557,
562 (1992); Pennsylvania v. Del. Valley Citizens’ Council for
Clean Air, 483 U.S. 711, 726-27 (1987); Blum, 465 U.S. at 898).
5.

Amount of the Downward Adjustment

Given the exclusions and deductions the court has already
made, the pre-adjustment lodestar stands at $167,223.95.

Port

City argues that the court should adjust the lodestar downward
by 90 percent to $16,722.40, based upon Wilson’s having

31

prevailed on only two of the 20 claims he originally brought.
The court disagrees.
In the first place, fees for nine of Wilson’s original 20
claims have already been deducted from the lodestar in Section
III.C.

Port City is not entitled to have those fees deducted a

second time.

Cf. Diaz, 741 F.3d at 179.

But, more importantly,

the Supreme Court has expressly indicated its disapproval of
Port City’s approach:
We agree with the District Court’s rejection of
“a mathematical approach comparing the total number of
issues in the case with those actually prevailed
upon.” Such a ratio provides little aid in
determining what is a reasonable fee in light of all
the relevant factors.
Hensley, 461 U.S. at 435 n.11 (citation to the record omitted).
Accordingly, the court proceeds down a different path, one
that involves a balancing of Wilson’s limited success on a
monetary basis against the societal importance of the claims on
which he prevailed.

The court conducts that balancing test in

light of its “intimate knowledge of the nuances of the
underlying case.”

Díaz-Rivera, 377 F.3d at 124 (quoting Gay

Officers, 247 F.3d at 292) (affirming 33 percent reduction in
attorneys’ fees where plaintiff prevailed on due-process claim,
lost on First Amendment claim, and recovered nominal damages).
Here, for the reasons discussed more fully above, the court
gives significant weight to the societal importance of the right

32

to be free from retaliation that was vindicated by Wilson’s
success against Port City, and concludes that Wilson is entitled
to $112,000 in attorneys’ fees.
IV. Conclusion
For the reasons described above, Wilson’s motion for
additur or a new trial on damages, document no. 102, is denied,
and his motion for attorneys’ fees and costs, document no. 101,
is granted in part.

Based upon the foregoing analysis, he is

entitled to, and the Port City shall pay him, $112,000 in
attorneys’ fees and $4,339.89 in costs.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
December 19, 2014
cc:

Matthew T. Broadhead, Esq.
Jacob John Brian Marvelley, Esq.
Paul McEachern, Esq.
Christine M. Rockefeller, Esq.

33