Braun v. Ultimate Jetcharters, Inc. et al
Memorandum Opinion and Order: In accordance with the analysis set forth: UJC's motion to stay execution of judgment (Doc. No. 113 ) is denied as moot; Plaintiff's motion for attorney's fees (Doc. No. 115 ) is granted, in part , and plaintiff is awarded $97,393.75 in fees; UJC's motion for remittitur (Doc. No. 125 ) is denied; UJC's motion for JMOL or new trial (Doc. No. 127 ) is denied; Plaintiff's motion to strike defendant's motion for JMOL o r new trial (Doc. No. 138 ) is denied; Plaintiff's motion to strike defendant's opposition to plaintiff's motion for attorney's fees (Doc. No. 139 ) is denied; and UJC's motion to consider additional authority (Doc. No. 158 ) is granted. Judge Sara Lioi on 7/30/2014. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
ULTIMATE JETCHARTERS, INC.,
CASE NO. 5:12CV1635
JUDGE SARA LIOI
MEMORANDUM OPINION AND
After a five-day trial, the jury returned a verdict in favor of plaintiff Carrie
Braun (“plaintiff” or “Braun”) on her state law retaliation claim, and awarded plaintiff
compensatory damages of $70,250.00 and punitive damages of $100,000.00. (Doc. No.
105.) Amidst the flurry of post-trial motion practice, and at the request of plaintiff, the
Court entered judgment in favor of plaintiff, in accordance with the jury’s verdict. (Doc.
No. 109.) Following the entry of judgment, plaintiff moved for attorney’s fees (Doc. No.
115), and defendant Ultimate Jetcharters, Inc. (“UJC”) filed an appeal from the judgment.
(Notice of Appeal, Doc. No. 129.) The Sixth Circuit has held the appeal in abeyance
while this Court resolves the parties’ post-trial motions. (See Doc. No. 132.)
On June 24, 2012, plaintiff brought suit against UJC and several of its
employees, claiming that her employment as a pilot with UJC was marred by sexual
harassment and gender discrimination. In her complaint, she raised a number of claims
including discrimination and retaliation under federal and Ohio law. (Complaint, Doc.
No. 1.) Defendants filed several dispositive motions, and, in two separate memorandum
opinions and orders, the Court dismissed the individual defendants and all of plaintiff’s
claims against UJC except the retaliation claim under Ohio Rev. Code § 4112.1 (Doc.
Nos. 25, 68.)
The case proceeded to trial on the remaining state law retaliation claim.
Plaintiff testified that, from the beginning of her employment with UJC, she was exposed
to a corporate climate hostile to female pilots. She claimed that two male pilots in
particular, Bob Rossi and Burt Wells, continually harassed her about her marital status,
her uniform, and her off-duty behavior. (Trial Transcript for Aug. 20, 2013, Doc. No. 120
at 1493-94, 1497, 1550-53, 1607.) According to plaintiff, she was continuously subjected
to undeserved criticism on account of her gender, especially from Rossi and Wells, and
that crude sexual jokes were callously bantered around in her presence. (Id. at 1563-64,
1566, 1640-41.) She testified that she reported this behavior to senior management
members on multiple occasions, and was fired a mere three weeks after she sent an email
to Dave Parsons, Ultimate Jetcharters’s director of operations, requesting that this
harassment cease. (Id. at 1522, 1533-34, 1631-32, 1660-62, 1664.) During its defense,
Ultimate Jetcharters offered the testimony of several of its employees, who testified that
plaintiff engaged in wild behavior while off-duty and violated several company policies,
including the prohibition against using a cellular phone below a certain altitude. (Doc.
Following the ruling on summary judgment, defendants moved for attorney’s fees for the dismissed
claims. (Doc. No. 83.) The Court held the briefing on this motion in abeyance until after trial. After a posttrial period of briefing, the Court entered an opinion and order denying defendants’ motion for fees. (Doc.
No. 120 at 1658; Trial Transcript for Aug. 21, 2013, Doc. No. 121 at 1817, 1822-26,
1829, 1835-36, 1839-42, 1948-54.)
Before the case was submitted to the jury, the parties agreed that if
plaintiff obtained a verdict in her favor and was awarded punitive damages, she would be
eligible to seek attorney’s fees under Ohio law. The parties further agreed to submit the
question of punitive damages to the jury but to reserve for the Court the question of
attorney’s fees in the event that punitive damages were awarded. On August 26, 2013, the
jury returned a verdict in favor of plaintiff, and awarded her the aforementioned
compensatory and punitive damages. On August 28, 2013, the Court entered judgment
consistent with the jury’s verdict. (Doc. No. 109.)
The parties then set about the business of filing post-trial motions. On
September 4, 2013, UJC filed a motion to stay execution of judgment based upon its
anticipated motion for a new trial. (Doc. No. 113.) On September 9, 2013, plaintiff filed
her motion for attorney’s fees. (Doc. No. 115.) On September 25, 2013, defendants filed
a motion for remittitur (Doc. No. 125), and a renewed motion for judgment as a matter of
law or for a new trial. (Doc. No. 127.) During this same time period, plaintiff filed her
opposition to defendants’ motion for attorney’s fees (Doc. No. 111), as well as a
supplement to her own motion for attorney’s fees. (Doc. No. 116.)
On September 27, 2013, UJC filed its notice of appeal. (Doc. No. 129.) On
October 3, 2013, the Sixth Circuit filed an appeal remark, wherein it indicated that the
appeal “will be held in abeyance until after the district court rules on pending motions,
identified under Fed. R. App. P. 4(a)(4), and jurisdiction transfers to the Sixth Circuit
Court of Appeals.” (Doc. No. 132 at 2635.)
DEFENDANT UJC’S MOTION FOR JMOL OR A NEW TRIAL
Pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, UJC
moves for judgment as a matter of law. In the alternative, it moves, pursuant to Fed. R.
Civ. P. 59(e), for a new trial. (Doc. No. 127 at 2615.)2 Plaintiff opposes the motion (Doc.
No. 148), and UJC has filed a reply. (Doc. No. 150.) According to UJC, the Court must
enter judgment as a matter of law in its favor, or grant a new trial, because the evidence
offered at trial was legally insufficient to sustain the jury’s verdict.
A. Plaintiff’s Motion to Strike
Before the Court can reach the merits of UJC’s motion for JMOL and/or a
new trial, it must address plaintiff’s motion to strike. (Doc. No. 138.) UJC opposes the
motion. (Doc. No. 144.) In her motion, plaintiff insists that most of the arguments UJC
raised in its Rule 50(b) motion were waived because UJC failed to raise them in its Rule
50(a) motion for a directed verdict. According to plaintiff, UJC must confine its Rule
50(b) motion to the previously raised issue of whether there was sufficient evidence to
support a determination that UJC was aware of plaintiff’s alleged protected activity.
It is true that a “post-trial motion for judgment may not advance additional
grounds that were not raised in the pre-verdict motion.” Kusens v. Pascal Co., Inc., 448
F.3d 349, 361 (6th Cir. 2006) (citing Am. & Foreign Ins. Co. v. Bolt, 106 F.3d 155, 15960 (6th Cir. 1997)). Nonetheless, the Sixth Circuit has counseled against a hypertechnical application of this rule, especially where the rule’s purpose of providing the
Court and opposing party notice of any possible deficiencies in the plaintiff’s case before
In connection with its motion, UJC has also moved the Court to consider additional authority. (Doc. No.
158.) The Court GRANTS this motion.
it goes to the jury has been satisfied. Id. (citing, among authority, Scottish Heritable
Trust, PLC v. Peat Marwick Main & Co., 81 F.3d 606, 610 (5th Cir. 1996)). UJC
suggests that, applying a liberal interpretation to its Rule 50(a) arguments, its Rule 50(b)
arguments are mere extensions of the arguments advanced at trial.
The Court has revisited the arguments made by UJC at the close of
plaintiff’s case, and agrees with plaintiff that most of the arguments UJC now advances
in support of its “renewed” motion were not raised at trial. (See Doc. No. 121 at 17821802.)3 Nonetheless, the issue is academic for two reasons. First, UJC has alternatively
moved for a new trial under Rule 59(e). A party may seek Rule 59(e) relief, even if he is
not entitled to a post-trial judgment as a matter of law. See generally Fed. R. Civ. P.
59(e). While different standards apply to each motion, the Court must still review UJC’s
arguments testing the sufficiency of the evidence as they pertain to its motion for a new
trial. Second, none of the arguments raised by UJC warrant disturbing the jury’s verdict
under either rule. Plaintiff’s motion to strike, therefore, is DENIED.
Rule 50(a), which governs judgment as a matter of law, provides:
If a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue, the court may:
resolve the issue against the party; and
grant a motion for judgment as a matter of law against the party on
a claim or defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue.
In fact, at trial, counsel for UJC emphasized that the basis for its Rule 50(a) motion was “very specific[,]”
noting that “the evidence shows that no complaint about sexual harassment or about discrimination was
made by Ms. Braun.” (Doc. No. 121 at 1782.)
Fed. R. Civ. P. 50(a). When reviewing a motion for a judgment as a matter of law based
on the insufficiency of the evidence, the court should not weigh evidence, evaluate the
credibility of witnesses, or substitute its judgment for that of the jury; rather, it must view
the evidence in a light most favorable to the party against whom the motion is made, and
give that party the benefit of all reasonable inferences. Arban v. W. Publ’g Corp., 345
F.3d 390, 400 (6th Cir. 2003); Hall v. Consol. Freightways Corp. of Del., 337 F.3d 669,
672 (6th Cir. 2003). Such a motion should only be granted where “‘there is no legally
sufficient evidentiary basis for a reasonable jury to find for that party on that issue.’”
Denhof v. City of Grand Rapids, 494 F.3d 534, 543 (6th Cir. 2007) (quoting Fed. R. Civ.
Rule 59 permits a court to grant a motion for a new trial “for any reason
for which a new trial has heretofore been granted in an action at law in federal court[.]”
Fed. R. Civ. P. 59(a)(1)(A). In deciding whether to order a new trial, the governing
consideration is “whether, in the judgment of the trial judge, such course is required in
order to prevent an injustice . . . .” Davis ex rel. Davis v. Jellico Cmty. Hosp. Inc., 912
F.2d 129, 133 (6th Cir 1990) (quoting Kilgore v. Greyhound Corp., 30 F.R.D. 385, 387
(E.D. Tenn. 1962)). A motion for a new trial may be granted if “the verdict is clearly
against the weight of the evidence.” Denhof, 494 F.3d at 543 (citing J.C. Wyckoff &
Assoc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1487 (6th Cir. 1991)). Under this
standard, a new trial is required “only when a jury has reached a seriously erroneous
result as evidenced by  (1) the verdict being against the weight of the evidence; (2) the
damages being excessive; or (3) the trial being unfair to the moving party in some
fashion, i.e., the proceedings being influenced by prejudice or bias.” Mike’s Train House,
Inc. v. Lionel, L.L.C., 472 F.3d 398, 405 (6th Cir. 2006) (quote omitted).
As set forth in this Court’s previous opinions and orders, plaintiff’s
complaint alleged that she was subjected to constant and unwelcome sexual harassment
and gender discrimination, that she reported this unwelcome gender-based conduct to her
superiors, and that UJC failed to take remedial measures to address it; choosing, instead,
to discharge her in retaliation for reporting this alleged unlawful discrimination.
To prevail on her retaliation claim under Ohio Rev. Code § 4112.02(I),
plaintiff had to establish by a preponderance of the evidence:
(1) that she made a complaint, or complaints, to Ultimate Jetcharters
of gender discrimination or sexual harassment,
(2) that she reasonably and in good faith believed constituted unlawful
discrimination or harassment,
(3) that plaintiff was discharged by Ultimate Jetcharters, and there
was a causal connection between plaintiff reporting
discrimination or harassment and the decision to discharge her.
See Baker v. Buschman Co., 127 Ohio App. 3d 561, 567, 713 N.E.2d 487 (Ohio Ct. App.
1998); (Jury Interrogatories, Doc. No. 106); (Trial Transcript for Aug. 23, 2013 [Jury
Instructions], Doc. No. 123 at 2563-66.)
UJC contends that there was insufficient evidence to establish that plaintiff
put her employer on notice that she believed that she was being sexually harassed and/or
discriminated against on the basis of her gender. It maintains that, at best, plaintiff’s
testimony established that she made generalized complaints about unfair treatment by
some of the pilots she flew with, including Rossi and Wells, but that she never advised
her superiors that she believed that she was being sexually harassed or discriminated
against on the basis of her gender.
It is true that generalized complaints about mistreatment in the workplace
will not suffice to put an employer on notice of perceived unlawful discrimination. See
Lockett v. Marsh USA, Inc., 354 F. App’x 984, 997 (6th Cir. 2009); see, e.g., Fox v.
Eagle Distrib. Co., Inc., 510 F.3d 587, 591-92 (6th Cir. 2007) (memo complaining that
upper management was “out to get” employee was insufficient to put the employer on
notice of protected activity). Indeed, “complaints concerning unfair treatment in general
which do not specifically address discrimination are insufficient to constitute protected
activity.” Weaver v. The Ohio State Univ., 71 F. Supp. 2d 789, 793-94 (S.D. Ohio 1998).
For example, in Kiehl v. Univ. Hosp. Health Sys.—Heather Hill, Inc., No.
1:08 CV 763, 2009 WL 1586326 (N.D. Ohio June 4, 2009), a case cited by UJC, the
employee complained that she was treated unfairly by her female boss. In dismissing the
action on summary judgment, the court found that there was nothing in the complaint that
suggested that the mistreatment the plaintiff believed she suffered at the hands of her
superior was the result of unlawful general animus, or that the calls the plaintiff made to
the company’s hotline complaining about this unfair treatment put the employer on notice
that the employee believed that she was the victim of gender discrimination. Id. at *6. In
contrast, the evidence was such that a reasonable jury could find that Braun put her
superiors on notice that she believed that she had been the victim of sexual harassment
and gender discrimination. While plaintiff certainly focused her complaints on the
treatment she was receiving from Rossi and Wells, with each complaint she made to
management, plaintiff expressed her belief that the mistreatment was the result of gender
At trial, plaintiff testified that the first time she contacted Parsons by
phone she complained that Rossi, Wells, and another pilot had mocked her during
counter-skyjacking/counterterrorism training. She called their behavior “discriminatory.
It’s wrong. Women can do this.” (Doc. No. 120 at 1508-09.) In her second call to
Parsons, plaintiff complained about an incident with Rossi on a flight that ended in a
shouting match. She told Parsons that Rossi did not treat her like she was “current” or
“qualified” and that it was because Rossi had “a problem flying with women.” (Id. at
1534.) After yet another run-in with Rossi and Wells, plaintiff called Parsons and advised
him that they “have a problem flying with a strong female pilot.” (Id. at 1632.) After she
discovered that Rossi and Wells were allegedly spreading rumors about her to others in
the flight industry, she called Parsons for at least a fourth time and exclaimed:
this has gotten completely out of control. I’ve told you – I’ve come to you
multiple times telling you about Bob and Bert. You’ve told me not to
worry about it. It’s one thing when they’re talking to people that know and
fly with me. And you know, I can turn to them and everybody knows that
it’s not a big ordeal. But when they go outside the company to people that
we do business with, [they are] ruining my reputation. They’re costing me,
quite honestly my entire—could be costing me quite honestly my entire
career. You told me not to worry about them. This is a problem. This is a
huge problem. And I want it stopped.
This is discrimination. This is harassment. They are only doing this
because they do not to like to fly with women.
(Id. at 1660-61, emphasis added.)
According to plaintiff, Parsons encouraged her to commit her complaints to
writing. Plaintiff testified that, with some reluctance, she composed a watered-down email
to Parsons, detailing some of the concerns she had regarding Rossi and Wells. (Doc. No.
120 at 1663.) Even though plaintiff suggested that she exercised restraint in composing the
email because she feared retaliation by Rossi and Wells, the subject line of the email still
contained the words “cease and desist” and the email used the word “harassment” twice.
(Plaintiff’s Trial Ex. 1; see Doc. No. 44-3.)
Plaintiff’s testimony, if believed, established that she perceived the poor
treatment she received by Rossi and Wells as being motivated by gender animus, and that
she conveyed her belief that she was being discriminated against on the basis of her status
as a female pilot to Parsons. The Court is satisfied that a reasonable jury, viewing the
evidence as a whole, could have found that plaintiff sufficiently put UJC on notice that
she believed that she had been the victim of unlawful gender discrimination and sexual
Indeed, the evidence offered at trial was sufficient to support each and
every element of plaintiff’s state retaliation claim. As set forth in plaintiff’s brief in
opposition, plaintiff’s testimony was replete with instances where plaintiff was subjected
to sexually offensive language and gender-based harassment and discrimination. This
evidence, if believed, would be sufficient to support a determination by the jury that
plaintiff reasonably and in good faith believed that she was engaging in protected activity
when she complained to Parsons. See McBroom v. Barnes & Noble Booksellers, Inc., 747
F. Supp. 2d 906, 914 (N.D. Ohio 2010) (With retaliation, the question is not whether the
conduct being reported constituted actionable discrimination, but rather whether the
employee reasonably and in good faith believed that she was reporting such conduct.)
(internal cites omitted).
There was also evidence offered at trial to support the jury’s determination
that there was a causal connection between plaintiff’s reporting of the alleged sexual
harassment and gender discrimination and the decision by UJC to terminate plaintiff’s
employment. John Gordon, CEO and founder of UJC, testified that he made the decision
to terminate plaintiff—with input from others—and that the decision was based upon
repeated reports that plaintiff was violating safety procedures and engaging in
unprofessional behavior that reflected poorly upon UJC. (Doc. No. 123 at 2409, 2422.)
Parsons echoed Gordon’s concerns, testifying that plaintiff was discharged for violating
the sterile cockpit rule—relating to the use of cell phones below a certain altitude—and
unprofessional off-duty behavior. (Doc. No. 121 at 1872-74.) However, several male UJC
pilots testified that they, themselves, had violated the sterile cockpit rule. (Doc. No. 121
at 1900, 1989; Trial Transcript for Aug. 22, 2013, Doc. No. 122 at 2097, 2173; Doc. No.
123 at 2469.) Even Parsons and Gordon admitted that they had, on occasion, failed to
honor the rule. (Doc. No. 121 at 1900; Doc. No. 123 at 2433-34.) Yet, plaintiff was the
only pilot ever disciplined as a result. (Doc. No. 123 at 2471.) There was also testimony
that established that plaintiff’s flying maneuvers were not unsafe or illegal. (Doc. No. 122
at 2087; Doc. No. 123 at 2405-08, 2465-66.) As for her alleged unprofessional off-duty
behavior, defense witnesses conceded that male UJC pilots used offensive language
(Doc. No. 121 at 1912; Doc. No. 122 at 2297-98, and drank alcohol to the point of being
“buzz[ed]” or intoxicated while not on duty. (Doc. No. 121 at 1899, 1981-82; Doc. No.
122 at 2092, 2267-68.)
Although another fact finder may have viewed the evidence differently,
there was sufficient evidence from which the jury could have found that plaintiff was
subjected to a double standard because of her gender. This double standard raised a
question of fact as to whether the proffered reasons for her discharge were merely a
pretext for unlawful discrimination, especially where the decision to terminate came on
the heels of plaintiff’s email complaining about harassing conduct. Montell v. Diversified
Clinical Servs., -- F.3d --, 2014 WL 2898525, at *6 (6th Cir. 2014) (collecting cases and
holding that “temporal proximity [between the protected activity and adverse action]
alone can be enough” to support an inference of retaliation). Because there was a legally
sufficient evidentiary basis for the verdict, and because the Court cannot find that the jury
reached a “seriously erroneous result,” defendant is not entitled to judgment as a matter
of law or a new trial.4
UJC’S MOTION FOR REMITTITUR
As an alternative to a new trial or judgment as a matter of law, UJC urges
the Court to order a remittitur of damages. (Motion, Doc. No. 125; Memorandum, Doc.
UJC also suggests that the conduct of Rossi and Wells could never support the jury’s verdict because it
constituted protected speech. The Court will not spend time on this argument, except to make two
observations. First, the only question before the jury was whether or not UJC retaliated against plaintiff for
reporting alleged sexual harassment and gender discrimination, not whether the comments of Rossi and
Wells would have been protected as free speech. Second, the First Amendment cannot be used to excuse or
condone sexual harassment or gender discrimination in the workplace, nor can it be used to justify
subsequent retaliation. See Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 884 n.89 (D. Minn. 1993)
(“Title VII may legitimately proscribe conduct, including undirected expressions of gender intolerance,
which create an offensive working environment. That expression is ‘swept up’ in this proscription does not
violate First Amendment principles.”) (cite omitted); Robinson v. Jacksonville Shipyards, Inc., 760 F.
Supp. 1486, 1534 (M.D. Fla. 1991) (imposing Title VII liability on an employer for failing to regulate its
employees’ harassing speech does not violate the First Amendment); see also Roberts v. United States
Jaycees, 468 U.S. 609, 628, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984) (“potentially expressive activities that
produce special harms distinct from their communicative impact . . . are entitled to no constitutional
protection”) (cite omitted).
No. 126.) Plaintiff opposes the motion (Doc. No. 147), and UJC has filed a reply. (Doc.
“[A] jury verdict should not be remitted by a court ‘unless it is beyond the
maximum damages that the jury reasonably could find to be compensatory for a party’s
loss.’” Gregory v. Shelby County, Tenn., 220 F.3d 433, 443 (6th Cir. 2000) (quoting
Jackson v. City of Cookeville, 31 F.3d 1354, 1358 (6th Cir. 1984)). The court may reduce
the award only if it is “(1) beyond the range supportable by proof, (2) so excessive as to
shock the conscience, or (3) the result of a mistake.” Slayton v. Ohio Dep’t of Youth
Servs., 206 F.3d 669, 679 (6th Cir. 2000) (citing Bickel v. Korean Air Lines Co., Ltd., 96
F.3d 151, 156 (6th Cir. 1996)). Remittitur is not appropriate simply because an award is
“extremely generous”; rather, it is allowed only when an award is “grossly
disproportionate” to the adduced evidence. Koster v. Trans World Airlines, Inc., 181 F.3d
24, 34 (1st Cir. 1999). In making its determination, the court must view the evidence in a
light most favorable to the prevailing party. Jackson, 31 F.3d at 1359 (quote omitted).
Award of Compensatory Damages
UJC does not challenge the Court’s instruction as to compensatory
damages that set forth the specific types of damages available.5 Rather, its attack upon the
jury’s award of compensatory damages centers on the questions the jury raised during
After an initial period of deliberation, the jury foreperson submitted the
We recall the amount of actual damages as $32,750.00. How do we further
compute any actual damages?—travel, etc?
This question was immediately followed by two additional questions:
Can [p]laintiff’s attorney fees be paid by the [d]efendant? If so, how
would we compute that?
Were any of [the] moving expenses covered by the [b]ankruptcy?
Relative to compensatory damages, the Court’s instruction provided:
You should consider the following types of compensatory damages and no others:
One, plaintiff’s past lost wages and benefits.
Two, the physical and/or emotional pain and suffering that plaintiff has
experienced and is reasonably certain to experience in the future, including emotional
pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. No
evidence of the dollar value of physical or mental/emotional pain and suffering has or
needs to be introduced. There is no exact standard for setting the damages to be awarded
on account of pain and suffering. You are to determine an amount that will fairly
compensate the plaintiff for the injury she has sustained.
Three, the reasonable value of medical care that plaintiff reasonably needed and
actually received as well as any medical care she may reasonably require in the future.
Four, any expenses other than lost pay that plaintiff reasonably incurred or will
incur in the future as a direct result of defendant’s retaliation.
If you find that defendant has retaliated against plaintiff, you may award as
actual damages an amount that reasonably compensates plaintiff for any lost wages and
benefits including bonuses, vacation pay, pension, health insurance, and other benefits
that plaintiff would have received had she not been retaliated against. Basically you have
the ability to make plaintiff whole for any wages or other benefits that she has lost as a
result of her discharge. In determining the amount of any back pay, you must deduct the
amount of wages and benefits received from replacement income.
(Doc. No. 123 at 2570-71.)
(Doc. No. 108 at 1157-58.) The Court discussed the questions with counsel in a
conference at side bar. The Court commented that “at this point, it almost seems that they
are—they are losing their way to an extent.” (Trial Transcript for Aug. 26, 2013, Doc.
No. 124 at 2590.) Following the side bar, and by agreement of the parties, the Court
provided the following response:
In response to your questions regarding “actual damages,” please be
advised that on pages 14-15 of the jury instructions you have been given
all of the instructions that you will receive regarding this category of
damages. Additionally, you may only make an award in this category of
damages to extent that evidence was presented on the issue and you find
that plaintiff proved the damages by the preponderance of the evidence.
(Doc. No. 108 at 1156.)
Based on the jury’s questions, UJC argues that plaintiff “did not present
evidence that her actual damages were $32,500. It appears that the jury included
[plaintiff’s] rent, utilities, and cell phone bill in the calculation, which [plaintiff] did not
incur as a direct result of her termination.” (Doc. No. 126 at 2610.)
UJC does not dispute that the jury was properly instructed on the subject
of compensatory damages. Furthermore, when the jury inquired as to the scope of such
damages, the jury was redirected to the portion of the instructions that listed the only
appropriate types of compensatory damages that could be awarded and was further
reminded that, of those limited permissible types of damages, they could only award such
damages as were proven by a preponderance of the evidence. A jury is presumed to have
followed its instructions, and is presumed to have understood a judge’s answer to its
questions. Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d 727
(2000); Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822 (6th Cir. 2000)
(“Federal courts generally presume the jury will follow the instructions correctly as
given.”) The Court sees no reason to suspect that the jury did not follow these
Moreover, the award of compensatory damages was not beyond the
maximum damages that were reasonably supported by the evidence. At trial, plaintiff
offered evidence that her lost wages were approximately $22,500. (Doc. No. 120 at 169293.) She also offered testimony that she incurred: (1) additional medical expenses of
approximately $250 per month (Id. at 1704-08); (2) approximately $8,000 in moving
expenses occasioned by having to relocate for a new job (Id. at 1696); and (3) increased
interest rates on students loans, following her default. (Id.) This evidence, alone, was
sufficient to support the jury’s award of compensatory damages.
In addition, plaintiff offered evidence that she suffered physical and/or
emotional pain as a result of defendant’s retaliation, which included sleeplessness, worry,
and loss of friends and a support system occasioned by the necessity to move to obtain
replacement employment. (Doc. No. 120 at 1711-14.) Of course, the calculation of pain
and suffering does not “lend itself to the application of a mathematical formula; it
requires the application of the jury’s best judgment and common sense based on the
evidence presented.” Fielden v. CSX Transp., Inc., No. 2:03-cv-995, 2009 WL 2824459,
at *4 (S.D. Ohio Aug. 26, 2009) (citing Champion v. Outlook Nashville, Inc., 380 F.3d
893 (6th Cir. 2004)); see Huber v. JLG Indus., Inc., 344 F. Supp. 2d 769, 776 (D. Mass.
2003) (“A district court should not be too quick to conclude that a jury award was
excessive because translating legal damage into money damages is a matter peculiarly
within a jury’s ken, especially in cases involving intangible, non-economic losses.”)
UJC did not request that the jury break out its compensatory damages
award, so there is no way to know precisely how much of the award, if any, represented
compensation for pain and suffering. Nonetheless, even if the entire award represented
damages for emotional distress, and notwithstanding the fact that plaintiff offered no
expert testimony in support, a compensatory damages award of $72,500 would not have
been excessive. See, e.g., Giles v. Gen. Elec. Co., 245 F.3d 474, 488 (5th Cir. 2001)
(approving $150,000 award for emotional distress based solely on lay testimony); Miller
v. Alldata Corp., 14 F. App’x 457, 466-67 (6th Cir. 2001) (emotional distress award of
$300,000 for a plaintiff who provided no medical evidence but claimed to have sleepless
nights and stomach problems was not excessive). Thus, considering both the evidence of
economic and emotional damages, the Court cannot find that the award of compensatory
damages is beyond the range of supportable proof, so excessive it shocks the conscience,
or the result of mistake. UJC has not demonstrated its entitlement to a remittitur of the
compensatory damages award.
Award of Punitive Damages
“It is well-settled that [Ohio Rev. Code §] 4112.99 permits an award of
punitive damages in a discrimination claim.” Waddell v. Roxane Lab., Inc., No. 03AP558, 2004 WL 1103710, at *13 (Ohio Ct. App. May 6, 2004) (citing Rice v. CertainTeed
Corp., 84 Ohio St. 3d 417, 704 N.E.2d 1217 (1999)). Under Ohio law, actual malice is
necessary for an award of punitive damages. Preston v. Murty, 32 Ohio St. 3d 334, 335,
512 N.E.2d 1174 (1987). Actual malice is defined as “(1) that state of mind under which
a person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a
conscious disregard for the rights and safety of other persons that has a great probability
of causing substantial harm.” Id. at 336. “Finally, unlike compensatory damages, the jury
is given wide discretion in determining whether punitive damages are justified and in
assessing the amount of such damages based upon its collective judgment as to the
punitive and deterrent effect that such an award would have.” Waddell, 2004 WL
1103710, at *13 (internal quote omitted).
Plaintiff insists that there is substantial evidence in the record that would
support the jury’s award of punitive damages. However, UJC is correct in observing that
much of the evidence plaintiff points to relates to her dismissed sexual harassment claim.
In Ohio, there can be no award of punitive damages in the absence of an underlying cause
of action. See Bishop v. Grdina, 20 Ohio St. 3d 26, 28, 485 N.E.2d 704 (1985),
superseded by rule on other grounds as stated in Niskanen v. Giant Eagle, Inc., 122 Ohio
St. 3d 486, 912 N.E.2d 595 (2009); Spalding v. Coulson, 104 Ohio App. 3d 62, 77, 661
N.E.2d 197 (Ohio Ct. App. 1995). “Rather, punitive damages are awarded as a mere
incident of the cause of action in which they are sought.” Spalding, 104 Ohio App. 3d at
77-78 (quoting Bishop, 20 Ohio St. 3d at 28). Because the Court dismissed plaintiff’s
sexual harassment claim, and the jury, thus, did not award compensatory damages for
sexual harassment, an award of punitive damages could not rest upon any evidence that
plaintiff was sexually harassed.6
In fact, the jury was specifically instructed that it was not permitted to award damages for alleged gender
discrimination or sexual harassment. (Doc. No. 123 at 2566.)
However, evidence of retaliation can support a punitive damages award.
See EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 514 (6th Cir. 2001) (punitive damages
award supported by evidence that employer retaliated against an employee for reporting
an incident of sexual harassment). The evidence offered at trial, viewed in a light most
favorable to plaintiff, supported a finding that UJC relied upon acceptable or routinely
tolerated behavior to support its decision to terminate plaintiff’s employment, and that
this decision came within weeks of plaintiff’s written report of alleged sexual harassment.
See, e.g., Jeffries v. Wal-Mart Stores, Inc., 15 F. App’x 252, 264 (6th Cir. 2001)
(approving an award of punitive damages for retaliation where the evidence demonstrated
that the employer used an “undeserved written reprimand for arguably appropriate
behavior” to justify dismissal). This behavior, if believed, would support either a finding
of a spirit of revenge, or a conscious disregard for the rights and safety of other persons
that has a great probability of causing substantial harm.
With respect to the latter, UJC argues that the evidence failed to establish
that John Gordon, the CEO of UJC and the ultimate decision-maker, knew that plaintiff
had engaged in protected activity when he terminated her employment. There are two
problems with this position. First, Parsons testified that he participated in the decision to
discharge plaintiff, and he had received numerous complaints from plaintiff. (Doc. No.
121 at 1873.) Second, Gordon admitted at trial that he was aware that plaintiff had
reported what she believed to be harassment when he ended her employment, even
though he disagreed with her assessment that she had been the victim of sexual
harassment. (Doc. No. 123 at 2429.) Because there is credible evidence to support the
award of punitive damages, the Court will not order a remittitur. See Am. Trim, L.L.C. v.
Oracle Corp., 383 F.3d 462, 475 (6th Cir. 2004) (“If there is any credible evidence to
support a verdict, it should not be set aside.”) (cite omitted).
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
Plaintiff’s motion for attorney’s fees (Doc. No. 115) rests upon the jury’s
finding of malice and its award of punitive damages. In addition to filing an opposition to
this motion (Doc. No. 135),7 UJC filed a memorandum regarding jurisdiction, in which it
suggested that this Court lacks jurisdiction to entertain plaintiff’s motion for attorney’s
fees.8 (Doc. No. 134.) In its memorandum, UJC directs the Court’s attention to the
unreported decision of Clarke v. Mindis Metals, Inc., No. 99-5517, 99 F.3d 1138 (6th Cir.
Oct. 24, 1996) (unreported table decision).
The litigation in Clarke involved the alleged breach of a lease agreement.
The agreement contained a provision that provided attorney’s fees to the prevailing party
upon any action on the lease. The case went to trial with the parties specifically reserving
the issue of the availability of attorney’s fees for the court to determine subsequent to
entry of the jury’s verdict. At trial, the jury found that the lessee did not breach the lease,
Plaintiff has moved to strike UJC’s opposition to her motion for fees (Doc. No. 139), UJC filed a brief in
opposition (Doc. No. 145), and plaintiff filed a reply. (Doc. No. 146.) Citing Local Rule 7.1(d)—requiring
responses to non-dispositive motions to be filed within 14 days—plaintiff insists that UJC’s response was
tardy by two weeks. UJC suggests that its opposition brief was timely filed under the 30-day period
allowed for responses to dispositive motions under Rule 7.1(d). According to UJC, the fee petition is a
dispositive motion because its resolution will result in a final judgment. See generally Massey v. City of
Ferndale, 7 F.3d 506, 510 (6th Cir. 1993) (resolution of post-judgment attorney’s fees is dispositive of a
party’s claim); Bennett v. Gen. Caster Serv. of N. Gordon Co., Inc., 976 F.2d 995, 998 (6th Cir. 1992)
(resolution of post-trial motion for sanctions was dispositive because, after its resolution, nothing would
remain but to execute judgment). Given the unusual posture of the case, the Court is inclined to give UJC
the benefit of the doubt. As set forth below, all that remains for the Court to do to effectuate a final
judgment is to resolve plaintiff’s motion for fees. Thus, plaintiff’s motion can—in a sense—be considered
dispositive. Plaintiff’s motion to strike is DENIED.
Interestingly, UJC does not argue that this Court lacks jurisdiction to entertain any of its post-trial
and the trial court formally entered what it deemed a “final judgment” in favor of the
lessee. Following the entry of judgment, the lessee moved for attorney’s fees, which the
trial court granted in a subsequent order.
On appeal, the lessor argued that the trial court lacked jurisdiction to
entertain the motion for fees having already entered final judgment. Id. at *3. The Sixth
Circuit rejected the argument. Citing Fed. R. Civ. P. 54(d)(2)(B), the court began with the
observation that, typically, the determination of attorney’s fees is a collateral matter to be
determined after the trial court enters final judgment.9 It concluded, however, that Rule
54 did not apply to the lessee’s request for fees because it was not collateral to the
judgment, but represented an element or component of damages, as set forth in the lease.
Id. at *8-*10.
The court focused upon the parties’ agreement that the trial court would
resolve the issue of damages. Because the trial court had not addressed this issue, its
judgment entry was not final. Id. at *6 (“Whether a decision is final depends on whether
the district court is through with the case”) (quote omitted). The Court concluded:
we hold that the district court had jurisdiction to entertain an award of
attorney’s fees to [lessee] in this case for four reasons. First, its entry of
final judgment did not comport with Rules 58 and 54(b) because it did not
dispose of the issue of attorney’s fees that was a part of the claims and
counterclaims advanced in this case. Second, . . . Rule 58’s provision that
a motion for attorney’s fees cannot delay the entry of final judgment is
inapplicable to this case. Third, even if the district court’s entry of
judgment . . . had been final, we would construe [lessee’s] motion for
attorney’s fees as a Rule 60(b)(1) motion for relief from the judgment on
account of mistake. Finally, we note that it would be hypertechnical and
Rule 54(d)(2)(A) provides that, “A claim for attorney’s fees and related nontaxable expenses must be
made by motion unless the substantive law requires those fees to be proved at trial as an element of
damages.” Rule 54(d)(2)(B)(i) provides that any such motion must be filed “no later than 14 days after the
entry of judgment[.]”
not in accord with the spirit of the Federal Rules to interpret them in a
fashion that would lead to the conclusion that the district court lacked
jurisdiction to entertain the motion for fees. We would be remiss in not
emphasizing, however, that the district court erred by entering “final
judgment” before deciding the issue of attorney’s fees. To avoid
confusion, final judgment orders should not be entered until non-collateral
attorney’s fees issues (and all other claims in the case against all parties)
are fully resolved.
Id. at *7.
Similarly here, the parties stipulated to having the Court resolve the issue
of attorney’s fees in the event that the jury awarded punitive damages. See, e.g., Scotts
Co. v. Cent. Garden & Pet Co., 256 F. Supp. 2d 734, 748 (S.D. Ohio 2003) (appropriate
for court to determine fees where the parties have stipulated to such a determination);
Kissinger, Inc. v. Singh, 304 F. Supp. 2d 944, 951-52 n.3 (W.D. Mich. 2003) (same). As a
result, there exists at least a colorable argument that when plaintiff asked that the jury’s
verdict be recorded, what it received was a non-final order. While the Court entered
judgment consistent with the jury’s verdict, its work was not finished because it had not
yet resolved the issue of attorney’s fees. Thus, when plaintiff filed a motion for attorney’s
fees, it did not do so under Rule 54 or 58 of the Federal Rules of Civil Procedure. The
gesture amounted to nothing more than a request that the Court finish its work. Though
plaintiff was not required to file a motion for fees, any such motion could be construed as
a motion under Rule 60(b) for relief from judgment.
As was the case in Clarke, plaintiff’s entitlement to fees would go to the
merits of any award because it would be a component of damages. While Ohio Rev.
Code § 4112.99 does not specifically provide for attorney’s fees, “‘Ohio has long
permitted recovery of attorney fees, even in the absence of statutory authorization, where
punitive damages are proper.’” Johnson v. Con-Way Freight, Inc., No. 4:10CV2167,
2010 WL 4735754, at *1 n.3 (N.D. Ohio Nov. 15, 2010) (quoting Sutherland v.
Nationwide Gen. Ins. Co., 102 Ohio App. 3d 297, 657 N.E.2d 281, 283 (Ohio Ct. App.
1995)). Under Ohio law, “[i]f punitive damages are proper, reasonable attorney fees may
be awarded as an element of compensatory damages.” Miller v. Grimsley, 197 Ohio App.
3d 167, 173, 966 N.E.2d 932 (Ohio Ct. App. 2011). Attorney’s fees cannot, therefore, be
considered collateral to the judgment.
UJC suggests that the facts diverge from Clarke, however, on one
significant point. In Clarke, the lessor had not yet filed his notice of appeal when the trial
court issued its ruling on the motion for fees. The Sixth Circuit panel found that the trial
court’s subsequent ruling on attorney’s fees essentially completed its work and
contributed to a final judgment in the case. Here, UJC has taken an appeal from the
Court’s August 28, 2013 judgment entry. This fact, alone, does not preclude the Court
from ruling on the present motion. If the Court’s judgment is not final until it rules on the
issue of plaintiff’s fees, then the notice of appeal was premature. Sixth Circuit law
provides that an improvidently filed notice of appeal may be disregarded by the district
court. See Cochran v. Birkel, 651 F.2d 1219, 1222 (6th Cir. 1981) (“We are persuaded
that filing a notice of appeal from a nonappealable order should not divest the district
court of jurisdiction and that the reasoning of the cases that so hold is sound.”) (internal
quote omitted). Even if the judgment entry was final, jurisdiction still has not transferred
to the Sixth Circuit because Fed. R. App. P. 4(B) provides that the filing of post-trial
motions under Fed. R. Civ. P. 50(b), 52(b), 54, 59, or 60 delays the effect of any notice of
appeal, a fact that the Sixth Circuit recognized when it stayed the appeal. Either way, this
Court has jurisdiction to consider plaintiff’s motion.
Turning to the merits, plaintiff submitted two sets of billing statements.
The first set, documenting attorney time spent prior to the filing of the post-trial fee
petition, shows fees totaling $212,112.50. (Plaintiff’s Counsel’s Billing Statements, Doc.
No. 116.) The second set, documenting attorney time spent on post-trial matters, shows
an additional $64,625 in fees. (Plaintiff’s Counsel’s Supplement, Doc. No. 152.) UJC
opposes plaintiff’s request for fees as unreasonable, and, indeed, the Court finds that its
task in ruling on this motion centers on the determination of the reasonableness of the fee
In the initial round of briefing on plaintiff’s motion for fees, neither side
addressed the issue of reasonableness. The Court permitted the parties to supplement the
filings to address this critical issue. In its initial supplement, UJC offered argument on the
reasonableness of Braun’s fee petition, and supported its opposition with copies of its
counsel’s verified billing statements. (Doc. No. 153; Affidavit Sidney Freeman and
attached billing statements, Doc. No. 153-1.) Plaintiff’s supplement included affidavits
from her attorneys in this case, as well as an affidavit from attorney David Eberly, who
offered an opinion as to the reasonableness of the requested fees. (Doc. No. 155;
Affidavit of David Eberly, Doc. No. 155-4.) UJC was subsequently permitted to file a
sur-reply, in which it offered its own expert opinion as to the reasonableness of plaintiff’s
fee petition.10 (Doc. No. 161; Affidavit of Thomas Haskins Jr., Doc. No. 161-1.)
The method for evaluating fee petitions for claims under Ohio law was set
forth in Bittner v. Tri-County Toyota, Inc., 58 Ohio St. 3d 143, 569 N.E.2d 464 (1991).
Relying on federal law, the Ohio Supreme Court observed that “‘[t]he most useful
starting point for determining the amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a reasonable hourly rate.” Bittner, 58
Ohio St. 3d at 145 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76
L. Ed. 2d 40 (1983)). This product has come to be known as the “lodestar.” Garner v.
Cuyahoga County Juvenile Court, 554 F.3d 624, 642 (6th Cir. 2009). After calculating
the lodestar, the court may modify the amount by applying the factors listed in Ohio Rule
of Professional Conduct 1.5(a). See Miller, 197 Ohio App. 3d at 173. These factors are:
the time and labor involved in maintaining the litigation; the novelty and
difficulty of the questions involved; the professional skill required to
perform the necessary legal services; the attorney’s inability to accept
other cases; the fee customarily charged; the amount involved and the
results obtained; any necessary time limitations; the nature and length of
the attorney/client relationship; the experience, reputation, and ability of
the attorney; and whether the fee is fixed or contingent.
Bittner, 58 Ohio St. 3d at 145-46 (citing the predecessor to Ohio R. Prof. Cond. 1.5(a));
Miller, 197 Ohio App. 3d at 173.
Because the parties were permitted to supplement their briefing on the motion with affidavits and other
evidence, the Court finds that it does not need to hold an evidentiary hearing on this motion. See State ex.
rel. Chapnick v. E. Cleveland City Sch. Dist. Bd. of Educ., 93 Ohio St. 3d 449, 451, 755 N.E.2d 883 (2001)
(a trial court is not required to hold an evidentiary hearing on an application for attorney’s fees).
Much of UJC’s opposition to plaintiff’s fee petition is devoted to the
notion that the award is not proportional. Because plaintiff only prevailed on one of the
eleven claims raised in the complaint, UJC suggests that an award of all fees incurred
litigating this matter would be disproportionate to the success achieved at trial.
Accordingly, UJC posits that Braun should only be permitted to recover the fees
expended litigating her one successful claim—the state law retaliation claim.
“Proportionality is not synonymous with reasonableness.” Miller, 197
Ohio App. 3d at 174. “A ‘reasonable’ fee must be related to the work reasonably
expended on the case and not merely to the amount of the judgment awarded.” Id. (quote
omitted). A court should resist the urge to reduce the calculation of a fee judgment to a
simple mathematical formula of the ratio of successful to unsuccessful claims.
Hollingsworth v. Time Warner Cable, 168 Ohio App. 3d 658, 684, 861 N.E.2d 580
(2006) (quote omitted).
That said, “work on an unsuccessful claim cannot be deemed to have been
expended in pursuit of the ultimate result achieved.” Hensley, 461 U.S. at 435 (internal
quote omitted). As a general rule, a trial court must separate unsuccessful claims and
claims for which attorney’s fees may not be awarded, from those for which fees may
properly be awarded. Hensley, 461 U.S. at 434-45; Bittner, 58 Ohio St. 3d at 145. Such a
division, however, is not always possible. As the Court in Hensley observed:
In other cases the plaintiff’s claims for relief will involve a common core
of facts or will be based on related legal theories. Much of counsel’s time
will be devoted generally to the litigation as a whole, making it difficult to
divide the hours expended on a claim-by-claim basis. Such a lawsuit
cannot be viewed as a series of discrete claims. Instead the district court
should focus on the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the litigation.
Hensley, 461 U.S. at 435.
In the present case, the foundation for all of the claims asserted in the
complaint was the treatment plaintiff alleged she received while employed as a pilot for
UJC. The same factual allegations supporting the dismissed claims formed the core of
plaintiff’s successful state law retaliation claim, and these same facts were sufficient to
warrant a jury award of compensatory and punitive damages at trial. Much of counsel’s
time would have been generally devoted to discovering and arguing the legal significance
of these shared facts, and their time cannot be neatly compartmentalized into discrete
efforts to advance any one particular claim. Given the fact that the claims are so
thoroughly intertwined, the Court cannot—and will not—reduce the award to account for
unsuccessful claims. See Edlong Corp. v. Nadathur, No. C-120369, 2013 WL 1294597,
at *3 (Ohio Ct. App. Mar. 22, 2013) (noting that “where multiple claims are rooted in the
same allegations, facts, discovery, and legal arguments, a trial court does not abuse its
discretion in awarding attorney fees for the time spent on the claims”) (cites omitted);
see, e.g., Waldo v. Consumers Energy Co., 726 F.3d 802, 823 (6th Cir. 2013) (refusing to
reduce award for sexual harassment, despite dismissal of retaliation and other claims,
where all of the claims arose out of plaintiff’s treatment in the workplace); Déjà Vu of
Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, Tenn., 421 F.3d 417,
423 (6th Cir. 2005) (refusing to reduce a fee to plaintiff for unsuccessful claims where the
successful and unsuccessful claims shared a “common core of facts” or were “based on
related legal theories”) (quote omitted); Barnes v. City of Cincinnati, 401 F.3d 729, 74546 (6th Cir. 2005) (similar).
B. Reasonableness of Fee Request
The Court now turns to the reasonableness of the fees sought. The party
seeking fees bears the burden of proving that they are reasonable. Reed v. Rhodes, 179
F.3d 453, 472 (6th Cir. 1999); Granzeier v. Middleton, 173 F.3d 568, 577 (6th Cir. 1999).
According to plaintiff’s submissions, plaintiff’s three attorneys spent approximately
1,024.75 hours litigating this case, at an hourly of between $250 and $275, for a total of
$276,737.50 in fees. (See Doc. No. 116 at 1218; Doc. No. 152 at 2775.) UJC suggests
that these figures are grossly inflated, and represent considerable excess for which it
should not be responsible.
“Calculation of the lodestar necessarily requires the trial court to exclude
any hours that were unreasonably expended, e.g., hours that were redundant, unnecessary
or excessive in relationship to the work done.” Miller, 197 Ohio App. 3d at 173; see
Hensley, 461 U.S. at 434; Reed v. Cracker Barrel Old Country Store, Inc., 171 F. Supp.
2d 751, 758 (M.D. Tenn. 2001) (“Cases may be overstaffed, and the skill and experience
of lawyers vary widely. Counsel for the prevailing party should make a good faith effort
to exclude from a fee request hours that are excessive, redundant, or otherwise
unnecessary[.]”) (internal quote omitted). “Hours that are not properly billed to one’s
client also are not properly billed to one’s adversary pursuant to statutory authority.”
Reed, 171 F. Supp. 2d at 758 (internal quote omitted, emphasis in original).
Plaintiff must come forward with documentation that substantiates the
reasonableness of the hourly rate charged and the hours incurred. See McCarthy v.
Ameritech Publ’g, Inc., 289 F.R.D. 258, 263 (N.D. Ohio 2013); Se. Land Dev., Ltd. v.
Primrose Mgmt. L.L.C., 193 Ohio App. 3d 465, 476, 952 N.E.2d 563 (Ohio Ct. App.
2011) (cite omitted). The documentation submitted must be sufficiently detailed to enable
the court to determine whether the time actually expended was reasonably expended. See
McCarthy, 289 F.R.D. at 263 (“Where the documentation is inadequate, the court may
reduce the award accordingly.”) (cites omitted).
Reasonable Hourly Rate
“A district court has broad discretion to determine what constitutes a
reasonable hourly rate for an attorney.” Wayne v. Vill. of Sebring, 36 F.3d 517, 533 (6th
Cir. 1994) (cite omitted). A reasonable hourly rate will be sufficient to attract competent
counsel, and yet will avoid producing a windfall for lawyers. Reed, 179 F.3d at 471. “A
useful guideline in determining a reasonable hourly rate is the ‘prevailing market rate in
the relevant community.’” Dowling v. Litton Loan Serv. LP, 320 F. App’x 442, 447 (6th
Cir. 2009) (quoting Blum v. Stenson, 465 U.S. 886, 895, 104 S. Ct. 1541, 79 L. Ed. 2d
891 (1984)). The prevailing market rate is defined as “that rate which lawyers of
comparable skill and experience can reasonably expect to command . . . .” Adcock-Ladd
v. Sec’y of Treasury, 227 F.3d 343, 350 (6th Cir. 2007); Geier v. Sundquist, 372 F.3d
784, 791 (6th Cir. 2004).
Plaintiff’s documentation demonstrates that three attorneys from the same
firm provided legal services on her behalf. Attorney Avonte Campinha-Bacote is the
managing and founding partner of Campinha Bacote LLP (“CB Law”). (Declaration of
Avonte D. Campinha-Bacote, Doc. No. 155-1 at ¶ 2.) He served as lead counsel and
billed the most time on this case. (Id.) He has been admitted to practice law in Ohio since
2010, and he currently bills his time at an hourly rate of $27511. (Id. at ¶¶ 1, 8.) Attorney
Joseph Russell served as co-counsel in this case. He is a partner in the firm of CB Law
and has been admitted to practice law in Ohio since 2008. 12 (Declaration of Joseph B.
Russell, Doc. No. 155-2 at ¶¶ 1-2.) His hourly rate is also $275. (Id. at ¶ 6.) The third
attorney, Daniel Dersham, is an associate with CB Law. He was admitted to the practice
law in California in 2012. He did not enter an appearance in this case, did not participate
in the trial, and appears to have devoted much of his time to motion practice. His time
was billed at the hourly rate of $250. (Declaration of Daniel E. Dersham, Doc. No. 155-3
at ¶¶ 1, 2, 5; Doc. No. 116.)
To support the reasonableness of the hourly rates charged by these
attorneys, plaintiff offers the opinions of attorneys Campinha-Bacote and Russell that
these rates are “fair” for the relevant legal community. (Doc. No. 155-1 at ¶ 9; Doc. No.
155-2 at ¶ 6.) Plaintiff also offers the expert opinion of attorney David Eberly, who was
admitted to practice law in Ohio in 1996 and whose practice includes employment
litigation. (Affidavit of David A. Eberly, Doc. No. 155-4 at ¶¶ 2, 3, 5.) He supports his
opinion that the hourly rates charged by plaintiff’s counsel in this case are “reasonable
and consistent with industry practice” by reference to the Economics of Law Practice in
Ohio in 2013, A Desktop Reference, which he has appended to his affidavit. (Id. at ¶¶ 1112; see Doc. No. 155-5.)
UJC challenges the reasonableness of these fees, noting that its attorneys
billed out their services in this case at much lower hourly rates, ranging from $110 to
Attorney Camphina-Bacote was admitted to the Ohio Bar on May 10, 2012.
Attorney Russell was admitted to the Ohio Bar on November 17, 2008.
$210. (See Doc. No. 153 at 2781; Doc. No. 153-1, Exs. A, B.) It also offers the opinion of
attorney Haskins, who has litigated in Ohio for more than 30 years and who opines,
without elaboration, that the rates charged by plaintiff’s attorneys are not reasonable.
(Doc. No. 161-1 at ¶¶ 2, 12.)
In support of his opinion that the $250 hourly rate charged by plaintiff’s
trial counsel was reasonable, attorney Eberly notes that, according to the Desktop
Reference, the median range for hourly rates for local attorneys practicing in the general
area of “labor law” is $250 to $288. (Doc. No. 155-4 at ¶ 12 [citing Doc. No. 155-5].)
This range is derived from a chart whose only consideration is the area of law in which
the attorney practices, and, specifically, does not take into account the experience level of
the attorneys in the various practice areas.13 (See Doc. No. 155-5 at 2894.) Another chart
contained within the Desktop Reference provides that the median hourly rate for attorneys
with the level of experience of plaintiff’s trial counsel (3 to 5 years) is between $175 and
$200.14 (Id. at 2893.) This chart also has its limitations as it does not take into
consideration the fact that attorneys practicing in the area of employment law may
generally be able to command a higher hourly rate than those practicing in other areas of
Attorney Eberly also avers that the $250-$288 range is consistent with his hourly billing rate. (Doc. No.
155-4 at ¶ 12.) However, attorney Eberly has been practicing law in the State of Ohio for “over 17
years[,]} considerably more time that both of plaintiff’s trial attorneys combined. (Id. at ¶ 11.)
Especially with respect to attorney Camphina-Bacote, the Court notes that it is generous to consider
salaries within the 3-5 years’ experience range, inasmuch as Camphina-Bacote had only been practicing
law for two years when he filed the present suit on behalf of plaintiff.
As was evident at times by the lawyering of plaintiff’s counsel in this case,
plaintiff’s litigation team had very little trial experience. While counsel achieved an
excellent result for their client, defendants should not have to pay a premium for
plaintiff’s counsel’s learning curve. The Court believes, therefore, that an hourly rate of
$200 adequately reflects the challenges associated with the practice of labor law, while
also recognizing that trial counsel are far from seasoned veterans.
Applying the same analysis, the Court finds that the rate charged by junior
associate Dersham ($250 per hour) is excessive. The survey relied on by plaintiff
provides that the overall median rate for an attorney with one to two years of experience
is $150 per hour. (Doc. No. 155-5 at 2893.) The Court will, therefore, reduce Dersham’s
hourly rate to $150 to more accurately account for the work he performed and his almost
negligible level of experience.
Reasonable Number of Hours
UJC also challenges the number of hours expended by plaintiff’s counsel
in this litigation, primarily by comparing those hours to the number of hours claimed by
its own counsel during the same relevant time period. Specifically, UJC notes that while
its attorney billing records show that defense counsel claimed a total of 516.45 hours of
attorney time for the entire case, plaintiff’s counsel’s records show that her counsel
expended 1,024.75 hours, almost twice the hours charged by defense counsel.15 (Doc. No.
153 at 2781-82 [citing Exs. A, B].) According to UJC, the disparity constitutes
compelling evidence of the existence of excessive and wasteful billing.
Of course, the Court’s inquiry is limited to the reasonableness of the hours claimed by plaintiff’s counsel.
Having reviewed plaintiff’s counsel’s billing statements, the Court does
find evidence of excessive billing. For example, billing sheets reflect that plaintiff’s
attorneys spent approximately 153.25 hours responding to defendants’ summary
judgment motion. While most of the work was performed by attorney Dersham, the
attorney billing out at the most modest hourly rate, all three attorneys devoted
considerable time to this filing. The Court finds this to be excessive. There was nothing
novel or unique about the issues raised by defendants’ summary judgment motion, and,
while numerous depositions were taken during discovery and excerpts were featured in
the opposition brief, the record was not so voluminous as to warrant the time alleged to
have been expended preparing it. See Hisel v. City of Clarksville, No. 3:04-0924, 2007
WL 2822031, at *5 (M.D. Tenn. Sept. 26, 2007) (reducing attorney’s fee award for
excessive billing for simplistic tasks where the issues in the case were “hardly new or
novel” to counsel).
Similarly, counsel’s billing sheets reflect that 52.25 attorney hours were
devoted to responding to defendants’ motion to dismiss. Like the summary judgment
motion, the motion to dismiss did not blaze any new ground or necessitate an
extraordinary amount of time to research or draft. Counsel’s post-trial motion practice
also appears to have suffered from the same excessive staffing. Time sheets reflect that
plaintiff’s counsel spent approximately 117.25 hours researching and drafting a response
to UJC’s motion for judgment as a matter of law. (Doc. No. 152.) This motion rehashed
arguments raised at summary judgment and did not demand the effort expended by
Plaintiff’s counsel also took a great many detours during the pendency of
the case. The vast majority of substantive motions filed in this case were immediately
met with a motion to strike. (See, e.g., Doc. Nos. 47, 79, 138, 139.) These procedural
motions were often of dubious merit and were seldom granted. The motions also had the
effect of diverting the Court’s attention away from the merits. While both sides engaged
in this folly, the Court will not reward plaintiff’s counsel for their role in it.
Turning to the time spent in preparation for and in trial on this matter, the
billing statements reflect that attorney Russell devoted approximately 18.5 hours to
preparing his opening statement.16 The Court finds this to be excessive. Both of
plaintiff’s trial attorneys have also billed an extraordinary number of hours each day of
the trial. For example, while the Court’s records reveal that the first day of trial—which
was limited to selecting a jury and addressing in limine motions—lasted four and onehalf hours, attorney Campinha-Bacote claimed 22.75 hours in trial and trial preparation,
and attorney Russell claimed 19.25 hours. (Doc. No. 116 at 1216.) Indeed, attorney
Campinha-Bacote claimed more than 20 hours on four of the five days of trial, and the
two trial attorneys each claimed an average of 18.7 hours per day of trial.17 (Id. at 121617.) The Court recognizes that a trial attorney’s day does not end when court is
adjourned, and that preparations must be made for the next day. Nonetheless, the hours
claimed are well above what an attorney would bill his own client, and cannot, therefore,
Because counsel often engaged in “block” billing, where a laundry list of the day’s legal activities were
lumped together, this figure represents an estimate.
Specifically, attorney Campinha-Bacote claimed the following hours: 22.75 hours on August 19, 2013,
20.5 hours on August 20, 2013, 23 hours on August 21, 2013, 20.25 hours on August 22, 2013, and 15.75
hours on August 23, 2013. (Doc. No. 116 at 1216-17.) For that same period, attorney Russell claimed:
19.25 hours for August 19, 2013, 18.75 hours for August 20, 2013, 17.25 hours for August 21, 2013, 17.50
hours for August 22, 2013, and 12 hours for August 23, 2014. (Id.)
be passed on to an opponent. See Northcross v. Bd. of Educ. of Memphis City Sch., 611
F.2d 624, 636-37 (6th Cir. 1979) (holding that a district court may cut hours for
duplication, padding or frivolous claims).
In fact, many of these time entries were so incredible that they call into
question the accuracy or veracity of all of the entries contained within the billing sheets.
For example, attorney Campinha-Bacote’s claim that he spent 23 hours in trial and trial
preparation on August 21, 2013 is highly improbable. Likewise, attorney CampinhaBacote’s entry of 2.75 hours for travel from his office in Columbus to Akron is
suspicious. (Doc. No. 116 at 1217.) Using a GPS search engine, the Court has determined
that such travel time would not have exceeded 2 hours.18 The Court has no confidence
that the billing statements presented by counsel are accurate or reasonable.
The Court’s determination of the reasonableness of the number of hours
expended prosecuting this case is further hampered by counsel’s practice of using
“block” entries to lump together multiple legal activities performed on the same day,
making it virtually impossible to determine how much time was spent on any one
activity.19 See Leviton Mfg. Co. v. Shanghai Meihao Elec., Inc., 613 F. Supp. 2d 670, 736
(D. Md. 2009) (“the use of block-billing introduces a level of unreliability in time entries
Plaintiff has failed to demonstrate that any travel time is reasonably assessed to UJC. Plaintiff has not
established that there were insufficient local competent attorneys capable of engaging in this type of
employment litigation. See generally Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir. 1995) (discussing the
employment of an out-of-town specialist). While plaintiff is not seeking an enhanced rate for her out-oftown counsel, the Court notes that it has the discretion to reduce or eliminate travel time charged by out-oftown counsel. See Anderson v. Wilson, 357 F. Supp. 2d 991, 1000 (E.D. Ky. 2005) (cites omitted); see, e.g.,
Pirolozzi v. Stanbro, No. 5:07-CV-798, 2009 WL 3624919, at *6 (N.D. Ohio Oct. 29, 2009) (reducing
travel time by out-of-town counsel because prevailing party did not justify retention of such counsel).
Because of the block billing, it is unclear whether counsel overestimated their travel time on occasions
other than the August 25, 2013 entry highlighted by the Court.
and thus less confidence in the documentation”), vacated and remanded on other grounds
by Leviton Mfg. Co. v. Universal Sec. Instruments, Inc., 606 F.3d 1353 (Fed. Cir. 2010).
Additionally, the Court has detected certain redundancies in the billing. Multiple
attorneys have billed for the same inter-office communications. While the Court
recognizes that time spent by counsel conferring “does not automatically constitute
duplication of efforts[,]” Sigley v. Kuhn, 205 F.3d 1341, at *8 (6th Cir. 2000)
(unpublished table decision), the billing sheets reflect that counsel double and triple
billed for discussions regarding routine matters. Counsel also billed time for tasks, such
as scheduling depositions, which were clearly clerical in nature. Courts have deducted
from fee petitions for such deficiencies. See, e.g., Lentz v. City of Cleveland, No. 1:04 CV
669, 2011 WL 5360141, at *4 (N.D. Ohio Nov. 7, 2011) (reduction for clerical tasks
performed by counsel); Mason v. Maine Dep’t of Corr., 387 F. Supp. 2d 57, 62 (D. Me.
2005) (reducing fee request for clerical work billed).
The Court could engage in a line-by-line review and reduction of the fees.
The Court, instead, elects to the follow the lead of other courts that have applied an
across-the-board reduction to account for excessive, redundant, and questionable entries.
See Auto Alliance Int’l, Inc. v. United States Customs Serv., 155 F. App’x 226, 228 (6th
Cir. 2005) (approving of across-the-board approach to fee determination); Schwarz v.
Sec’y of Health & Human Serv., 73 F.3d 895, 906 (9th Cir. 1995) (across-the-board
percentage cut is “a practical means of trimming the fat of a fee application”) (quote
omitted); Ky. Rest. Concepts Inc. v. City of Louisville, 117 F. App’x 415, 419 (6th Cir.
2004) (noting that while cutting a percentage of hours may appear “arbitrary,” it is an
“essentially fair approach”). The Court finds that a 50% reduction in hours claimed
“represents a fair and expeditious solution to determining the sum total of reasonable
fees” that plaintiff has incurred in prosecuting her state-law retaliation claim. Cobell v.
Norton, 407 F. Supp. 2d 140, 166 (D.D.C. 2005) (quote omitted); see, e.g., Saint-Gobain
Autover USA, Inc. v. Xinyi Glass N. Am., Inc., 707 F. Supp. 2d 737, 764-65 (N.D. Ohio
2010) (50% reduction for excessive billing and inadequate documentation); Healthcall of
Detroit, Inc. v. State Farm Mut. Auto. Ins. Co., 632 F. Supp. 2d 676, 685 (E.D. Mich.
2009) (40% reduction in fees to account for inadequate “summaries” of activities); Tinch
v. City of Dayton, 199 F. Supp. 2d 758, 755-56 (S.D. Ohio 2002) (fee reduced by 30% to
account for duplicative hours and vague and inconsistent entries). This reduction
accounts for counsel’s excessive and block billing, overstaffing, improvidently filed
procedural motions, and the Court’s overall lack of confidence in the accuracy and
veracity of the billing records. Applying a 50% reduction in hours claimed to the hourly
rates approved for counsel, the Court awards plaintiff’s attorney’s fees in the amount of
$97,393.75.20 The Court finds that this amount adequately recognizes the success counsel
achieved for their client, while ensuring that the charged fees are not unreasonably
excessive.21 Therefore, plaintiff’s motion for fees is GRANTED, in part.
The fees generated by attorney Dersham were calculated as follows: the 203.25 hours claimed by
attorney Dersham were reduced by 50% (101.625) and multiplied by the hourly rate of $150, for a total of
$15,243.75. The fees generated by attorneys Campinha-Bacote and Russell were calculated as follows: the
821.50 hours claimed by the pair were reduced by 50% (410.75) and multiplied by the hourly rate of $200,
for a total of $82,150.00. Added together, the two amounts total $97,393.75.
Given the fact that the Court has applied an across-the-board reduction to the requested fees, the Court
finds that a further reduction—based upon consideration of the factors set forth in Ohio R. Prof. Cond.
UJC’S MOTION TO STAY EXECUTION OF JUDGMENT
Finally, UJC has moved, pursuant to Fed. R. Civ. P. 62(b), to stay
execution of judgment. (Doc. No. 113.) Plaintiff has filed an opposition to the motion.
(Doc. No. 114.) Rule 62(b) affords a court the option of staying proceedings to enforce a
judgment while it considers certain post-trial motions. Having now resolved all of the
pending post-trial motions, there is no need for a stay under Rule 62(b), and UJC’s
motion is DENIED as moot.
In accordance with the analysis set forth above:
UJC’s motion to stay execution of judgment is DENIED as moot;
Plaintiff’s motion for attorney’s fees is GRANTED, in part, and plaintiff is
awarded $97,393.75 in fees;
UJC’s motion for remittitur is DENIED;
UJC’s motion for JMOL or new trial is DENIED;
Plaintiff’s motion to strike defendant’s motion for JMOL or new trial is
Plaintiff’s motion to strike defendant’s opposition to plaintiff’s motion for
attorney’s fees is DENIED; and
UJC’s motion to consider additional authority is GRANTED.
IT IS SO ORDERED.
Dated: July 30, 2014
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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