Johnson, et al v. Memphis, City of

Filing 623

ORDER granting in part and denying in part (411) Motion for Attorney Fees; granting in part and denying in part (600) Motion for Attorney Fees; adopting in part Report and Recommendations re (613) Report and Recommendations. in case 2:00-cv-02608-STA-tmp. Signed by Judge S. Thomas Anderson on 8/23/12. Associated Cases: 2:00-cv-02608-STA-tmp, 2:04-cv-02013-STA-egb, 2:04-cv-02017-STA-tmp(Anderson, S.)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
MARILYN JOHNSON; DURAND
)
MARTIN; FRED ACOSTA; RACHELLE)
BARHAM; MIKE BISHOP; MIKE
)
BLAKELY; SPENCER BRIGGS;
)
GLENDA BROWN; TRACY BURFORD;)
FELIX CALVI; ROBIN CAMPBELL; )
TIM COOPER; CRAIG COOK; JAMES )
CURRIN; SEAN G. DAUBERGER;
)
ANTHONY DAVIS; BRIAN DEHAAN; )
CHAROLETTE EASTER; LARRY
)
ECHOLS; CHARLES GENTRY; JAMES)
GRISBY; JOHN HARBER; ROBERT )
HONORE; MELANIE HOWE;
)
DOROTHY HYMAN; PHILLIP
)
JACKSON; CHORCIE JONES;
)
URSALA JONES; STACEY
)
LAMONDUE; KATHLEEN LANIER; )
JAMES LUCKETT; EDWARD
)
LUELLEN; RUSSELL MANESS; JOHN )
MANNON; JOSEPH MARROW; MIKE )
MCCORD; MICHAEL MCCOLLUM; )
ALISA MITCHELL; ALVIN MOORE; )
LESLEY MURRELL; DAVID
)
PAYMENT; PAUL PRITT; MUNDY
)
QUINN; HERLANCER ROSS;
)
ANTHONY RUSSELL; RICKY
)
SWATLEY; CELIA TISBY; PAUL
)
TREMMEL; VERNON VAN BUREN; )
STEVE WARE; KEDZIE WHITE; and )
CONSTANCE YOUNG,
)
)
Plaintiffs,
)
v.
)
)
CITY OF MEMPHIS,
)
)
Defendant,
)
)

Nos. 00-2608-STA-tmp; 04-2017-STA-tmp

1

and

)
)
FLORENCE BILLINGSLEY; AUNDRA )
SEGREST; LATANYA ABLE; GARY )
BADGETT; BERNICE BLACK; BRUCE)
BIVENS; LOYCE BONDS; SHERMAN )
BONDS; TASHA CARTER; CLIFTON )
DATES; ERIC DATES; CARLOS
)
DAVIS; MYRON FAIR; ANTHONY
)
GARDNER; NOVELL GRAY; BYRON )
HARDAWAY; ERIC HULSEY;
)
ARLANDA JACKSON; EVLIN
)
JACKSON; BOBBY JONES;
)
DEBORAH JONES; MYRON
)
LAWRENCE; MARK LUCAS;
)
RUSSELL MCDANIEL; VERTIE
)
MCNEIL; JESSIE NELOMS; CARL
)
RAY; JOHN SMITH; DAFFNEY
)
THOMAS; RYAN THOMAS; JAMES )
VALENTINE; KEITH WATSON;
)
JACKIE WILLIAMS; JOHN
)
WILLIAMS; and FRANK WINSTON, )
)
Plaintiffs,
)
)
v.
)
No. 04-2013-STA-egb
)
CITY OF MEMPHIS,
)
)
Defendant.
)
______________________________________________________________________________
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION, GRANTING IN
PART AND DENYING IN PART PLAINTIFFS’ INTERIM MOTION FOR
ATTORNEY’S FEES, AND GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ SUPPLEMENTAL MOTION FOR ATTORNEY’S FEES
______________________________________________________________________________
Before the Court are Plaintiffs’ Motion for Attorney’s Fees (“the Interim Motion”) (D.E.
# 411), filed on February 28, 2007 and Plaintiffs’ Supplemental Motion for Attorney’s Fees (“the
Supplemental Motion”) (D.E. # 600), filed on February 27, 2012. Defendant filed Responses
2

(D.E. # 417, 608) on March 26, 2007, and March 26, 2012, and Plaintiffs filed Replies (D.E. #
602, 611) on February 29, 2012, and April 5, 2012. Defendant also filed a Sur-reply to the
Supplemental Motion (D.E. # 612) on April 12, 2012.
The Magistrate Judge issued a Report and Recommendation (“the R&R”) granting in part
and denying in part the Interim and Supplemental Motions (D.E. # 613) on June 21, 2012.
Plaintiffs and Defendant filed Objections (D.E. # 618-619) on July 16, 2012, and they filed
Responses to the Objections (D.E. # 620-621) on July 30, 2012. For the following reasons, the
Court ADOPTS IN PART the R&R, GRANTS IN PART AND DENIES IN PART Plaintiffs’
Interim Motion, and GRANTS IN PART AND DENIES IN PART Plaintiffs’ Supplemental
Motion.
BACKGROUND
The objections to the R&R constitute one of the final issues remaining in this case’s
twelve-year history. Plaintiffs initially sued Defendant for alleged violations of Title VII’s
prohibition against racial discrimination in the promotional processes within the Memphis Police
Department. After a non-jury trial held before Judge Donald1 on July 11-28, 2005, the court
found for Defendant on all claims except Plaintiffs’ Title VII disparate impact claims as to the
2002 sergeant promotion process. The court entered a Memorandum Opinion and Order on
Remedies (D.E. # 388) on December 28, 2006, which granted attorney’s fees to Plaintiffs’
attorney David Sullivan (“Sullivan”), a solo practitioner. As such, Plaintiffs filed the Interim and
Supplemental Motions currently before the Court.

1

Due to Judge Donald’s elevation to the Sixth Circuit, the Court was reassigned to
this case on January 5, 2012.
3

In the R&R, the Magistrate Judge detailed this case’s lengthy procedural history in his
Proposed Findings of Fact. (R&R, D.E. # 613, at 2-16.) Neither party has objected to this
recitation, and the Court has reviewed it thoroughly. Accordingly, the Court will ADOPT the
Magistrate Judge’s Proposed Findings of Fact and hereby incorporates them by reference. The
Court will now discuss the Magistrate Judge’s proposed conclusions of law and identify those to
which the parties object.
First, the Magistrate Judge evaluated the reasonableness of Sullivan’s hourly rate. After
reviewing the parties’ arguments and examining other civil rights cases from the Western District
and Sixth Circuit, the Magistrate Judge recommended that the Court award fees at a rate of
$250.00 per hour for Sullivan’s services performed up to February 2007. (Id. at 19-20.) To
compensate him for the delay in receiving his fees, Plaintiffs would receive simple interest at a
rate of 2.35% per annum as of December 28, 2006 on the attorney’s fees requested in the Interim
Motion. (Id. at 21.) For the fees requested in the Supplemental Motion, the Magistrate Judge
recommended a rate of $325.00 per hour, which compensates Sullivan for the delay in receiving
his fee, falls within the market rate for comparable legal services, and factors in the case’s
unique, complex, and demanding nature. (Id. at 22.)
After establishing Plaintiffs’ attorney’s hourly rate, the Magistrate Judge turned to the
reasonableness of the hours he expended. First, the Magistrate Judge addressed the parties’
arguments regarding Plaintiffs’ unsuccessful claims. He recommended not reducing Plaintiffs’
attorney’s fees for lack of success on certain legal claims: because Plaintiffs’ success in their
Title VII claims procured the same result and remedies sought by their unsuccessful claims, and
the factual and legal underpinnings of all of Plaintiffs’ claims—an analysis of Defendant’s
4

flawed promotion processes, the testing modalities used during those processes, and the
statistical and expert support for Defendant’s chosen procedures—were the same, a reduction
was not necessary. (Id. at 22-23.) The Magistrate Judge also did not reduce the fee award for the
non-minority Plaintiffs’ claims for four reasons: Judge Donald did not limit her award of
attorney’s fees to only the minority Plaintiffs, the non-minority Plaintiffs successfully invalidated
Defendant’s 2000 sergeant promotion process, their claims significantly related to the same
factual circumstances as the minority Plaintiffs’ claims because all Plaintiffs challenged the
validity of Defendant’s promotion process, and Sullivan did not seek payment for 99 hours of
work devoted to non-overlapping claims brought by the non-minority Plaintiffs. (Id. at 23-24.)
Second, the Magistrate Judge did not reduce Plaintiffs’ fees for including clerical work in
his requested hours. He noted that Sullivan is a solo practitioner without the benefit of paralegals
or support staff and that many of the entries Defendant objected to were not clerical in nature.
(Id. at 25.) Relying on Sullivan’s declaration that he did not seek payment for clerical time for
the preparation or sending of documents, the Magistrate Judge found that a reduction of fees
based on including clerical work would be inappropriate. (Id. at 26.) Third, the Magistrate
Judge did not reduce Plaintiffs’ claimed hours of work for including hours devoted to Plaintiffs’
unsuccessful discovery request for Defendant’s attorney billing records. (Id.) Based on some of
Judge Donald’s prior rulings in the case, the Magistrate Judge found that Sullivan could have
reasonably expended the work with the belief that the discovery request would be successful.
Accordingly, the Magistrate Judge did not exclude the hours devoted to Plaintiffs’ unsuccessful
motion. (Id. at 27.)

5

Fourth, the Magistrate Judge minimally reduced Plaintiffs’ fee for Sullivan’s vague time
entries: he excluded 2.25 hours from Billingsley because the entry stated only “conference with
clients.” (Id. at 27-28.) Fifth, the Magistrate judge also minimally reduced Plaintiffs’ fee for
excessive hours. Although Sullivan billed simple tasks such as reviewing setting orders or
leaving telephone messages at 0.25 hours, the Magistrate Judge found that such tasks merit only
0.10 of attorney time. (Id. at 29.) Therefore, the Magistrate Judge reduced Sullivan’s hours in
the Motion by 1.5 hours. (Id.) Additionally, Plaintiffs requested an enhancement of their
attorney’s fees by a multiplier of 1.2. After reviewing Perdue v. Kenny A. ex rel. Winn, 130 S.
Ct. 1662 (2010), which held that a fee enhancement may not be awarded based on a factor
included in the lodestar calculation, the Magistrate Judge concluded that Plaintiffs’ requested
grounds for enhancement were fairly accounted for in his application of the lodestar factors,
thereby not warranting an enhancement. (Id. at 29-30.)
Next, the Magistrate Judge turned to Plaintiffs’ requested expenses. Defendant objected
to several of Plaintiffs’ expert witness fees, but Defendant did not persuade the Magistrate Judge
that the fees should not be awarded. For example, the Magistrate Judge found Dr. Sharf’s expert
fees to be reasonable because he reviewed Defendant’s procedures in designing its 2002
promotion test and assisted in Plaintiffs’ challenge to the sergeant promotion processes used in
2001-2002. (Id. at 30-31.) Dr. DeShon’s fees were reasonable as well: he rebutted Defendant’s
experts, analyzed the promotion processes, and reviewed alternative employment practices with
potentially less adverse impact on minority plaintiffs, which were relevant to Plaintiffs’ Title VII
claims. (Id. at 31-32.) Moreover, Dr. DeShon’s expense entries were not vague because
Plaintiffs attached invoices detailing Dr. DeShon’s activities. (Id. at 32.) Finally, Dr. Parrish
6

reasonably provided an affidavit supporting Plaintiffs’ motion for partial summary judgment, and
his fees were not excessive. (Id.) And the Magistrate Judge recommended applying a per annum
simple interest rate of 2.35% as of December 28, 2006 to the Interim Motion’s expenses. (Id. at
33.)
Plaintiffs have filed three objections to the R&R. They object to: (1) the use of a $325.00
hourly rate instead of the $375 requested rate and the Magistrate Judge’s recommendation not to
apply the current rate to all work done in the case, (2) the recommendation not to apply a fee
enhancement, and (3) the use of simple interest instead of the requested compound interest rate.
(Pls.’ Objections, D.E. # 618, at 1.) Defendant also submitted three main objections. It (1)
objects to the awarding of fees for Plaintiffs’ non-meritorious claims, (2) argues that the fees
awarded to Plaintiffs’ experts were excessive because the experts had a limited role in the case’s
litigation, and (3) avers that the $325.00 per hour fee awarded to Sullivan is unreasonable.
(Def.’s Objections, D.E. # 619, at 1.)
The Court will discuss the parties’ arguments regarding their objections below. The
Court has reviewed the portions of the R&R to which the parties have not objected, and the Court
agrees with the Magistrate Judge’s recommendations as contained in the R&R for the reasons
stated in the R&R. Therefore, the Court ADOPTS those portions of the R&R to which the
parties have not objected.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636, the Court may refer a motion for attorney’s fees to the
United States Magistrate Judge for the purpose of submitting proposed findings of fact and

7

recommendations for the disposition of the motion.2 The Court must “make a de novo
determination of those portions of the report or specific proposed findings or recommendations
to which objection is made.”3 After reviewing the evidence, the Court is free to accept, reject, or
modify the proposed findings or recommendations of the magistrate judge.4 The Court need not
review, under a de novo or any other standard, those aspects of the report and recommendation to
which no specific objection is made.5 Rather the Court may adopt the findings and rulings of the
magistrate judge to which no specific objection is filed.6
ANALYSIS
Reasonable Hourly Rate
Both parties object to the R&R’s recommended hourly rate. The lodestar method of
determining a reasonable attorney’s fee has “achieved dominance in the federal courts.”7 The
first step in determining an amount of attorney’s fees under the lodestar method, which
ultimately approximates the fee the prevailing attorney would have received if he or she had
represented a paying client billed by the hour, examines the prevailing market rates in the

2

28 U.S.C. § 636(b)(1)(B).

3

Id. § 636(b)(1)(C).

4

Id.

5

Thomas v. Arn, 474 U.S. 140, 150 (1985).

6

7

Id. at 151.
Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1672 (2010).
8

relevant community.8 In addition to evidence such as affidavits by attorneys familiar with
prevailing rates in the community, other factors to take into account include:
(1) the time and labor required by a given case; (2) the novelty and difficulty of
the questions presented; (3) the skill needed to perform the legal service properly;
(4) the preclusion of [other] 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 undesireability of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases.9
In their Objections, Plaintiffs note that they sought $375 per hour for work after February
of 2007 and requested the Court to apply that rate retroactively to all of the hours Sullivan
worked in the case to compensate for the delay in payment.10 Because the Magistrate Judge’s
recommendation differs from these requests, Plaintiffs renew them now. Moreover, they argue
that $375 is the prevailing market rate in Memphis for Title VII cases, and they cite to the
affidavits submitted by local attorneys accompanying the Supplemental Motion. Without citing
to any legal authority, Plaintiffs state that Defendant did not offer evidence that $375 per hour is
an unreasonable rate in Memphis; instead, Defendant offered the affidavit of one of its lead
attorneys, but that attorney did not claim that $375 per hour was unreasonable or state that he had
knowledge of the prevailing market rate in Memphis.11 Plaintiffs point out that the prevailing
market rate is presumed reasonable, and they also submit that Judge Donald had approved similar

8

Id. (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)).

9

Reed v. Cracker Barrel Old Country Store, Inc., 171 F. Supp. 2d 751, 759 (M.D.
Tenn. 2001) (quoting Reed v. Rhodes, 179 F.3d 453, 471 n.3 (6th Cir. 1999)).
10

(Pls.’ Objections, D.E. # 618, at 2.)

11

(Id. at 3.)
9

rates in complex civil rights cases during the pendency of this case.12 Thus, Plaintiffs request the
Court to apply a rate of $375 per hour to all of the hours Sullivan worked in this case since its
inception.
In response, Defendant avers that it submitted “a great deal of evidence”—the affidavit of
its lead counsel—to rebut Plaintiffs’ assertions about the prevailing market rate.13 Defendant
relies on cases cited in the R&R to argue that courts in the Western District and the Sixth Circuit
itself generally approve rates lower than the $375 sought by Plaintiffs.14 Furthermore, Defendant
submits that Plaintiffs agreed that $250 per hour was a reasonable rate in the Interim Motion, and
then raised that figure by $125 per hour, a 50% increase, in their Supplemental Motion.15 Thus,
Defendant argues that applying the $375 per hour rate retroactively would create an
inappropriately large windfall for Plaintiff’s attorney, and the R&R’s application of simple
interest to the requisite attorney’s fees amounts sufficiently compensates Plaintiffs for the delay
in receiving their attorney’s fees.16 Therefore, the rate for fees since the Interim Motion need not
rise above $250 per hour.
In its Objections, Defendant addresses the R&R’s application of a $325 per hour rate for
hours worked from December 28, 2006 to present. Specifically, Defendant does not object to the

12

(Id. at 4-5.)

13

(Def.’s Resp., D.E. # 620, at 2.) The Court need not decide whether one affidavit
can fairly be characterized as “a great deal of evidence.”
14

(Id. at 3.)

15

(Id. at 4.)

16

(Id. at 4-5.)
10

application of a $250 per hour rate for hours incurred prior to the filing of the Interim Motion,
but it does object to the Magistrate Judge’s recommendation that hours incurred after the Interim
Motion be compensated at the rate of $325 per hour.17 Defendant argues that $325 per hour does
not reflect the prevailing market rate in Memphis, especially in light of the “economic realities of
the preceding five years,” including the recession and general economic downturn.18 Defendant
also cites to a previous Report and Recommendation issued by the same Magistrate Judge and
adopted by this Court—without objection by the plaintiffs—that reduced fees to $225-$275
because the requested rates were substantially higher than other attorneys’ rates in Memphis.19 In
response, Plaintiffs rely on their arguments raised in their own Objections.20
The Court has considered the parties’ objections related to Sullivan’s hourly rate, and it
will OVERRULE the parties’ objections and ADOPT the hourly rate as detailed in the R&R.
The Court finds that the rate of $250.00 per hour for fees requested in the Interim Motion is
reasonable: the Court will compensate Sullivan for the delay in awarding his fees by awarding
him interest as discussed below. Therefore, it need not raise the hourly rate to compensate him
for the delay in payment. Moreover, the $325.00 per hour rate for fees in the Supplemental
Motion is reasonable: it aligns with the rate charged by Defendant’s lead counsel, falls within the
market rate for comparable legal services, and factors in the case’s duration and complexity.

17

(Def.’s Objections, D.E. # 619, at 7.)

18

(Id.)

19

(Id. at 8.) The Court notes that neither party objected to the Report and
Recommendation in Oakley v. City of Memphis, No. 06-2276.
20

(Pls.’ Resp., D.E. # 621, at 8.)
11

Because it is moderately higher than other rates approved in this District for other civil rights
cases, the Court need not assess interest on fees charged at the $325 per hour rate. The increase
in fees adequately compensates Sullivan for the delay in receiving payment. Accordingly, the
parties’ objections are OVERRULED, and this portion of the R&R is ADOPTED.
Fee Enhancement
Perdue set forth six principles guiding the application of multipliers to statutory awards
of attorney’s fees. First, “a ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney
to undertake the representation of a meritorious civil rights case.”21 Second, “the lodestar
method yields a fee that is presumptively sufficient to achieve this objective.”22 Third, although
the Supreme Court has “never sustained an enhancement of a lodestar amount for performance, .
. . [it has] repeatedly said that enhancements may be awarded in ‘rare’ and ‘exceptional’
circumstances.”23 Fourth, because the lodestar amount “includes most, if not all, of the relevant
factors constituting a ‘reasonable’ attorney’s fee, . . . an enhancement may not be awarded based
on a factor that is subsumed in the lodestar calculation.”24 Generally, neither the novelty and
complexity of a case nor the quality of an attorney’s performance should be used to adjust the
lodestar because the reasonable hourly rate reflects these considerations.25 Fifth, the fee applicant

21

Perdue, 130 S. Ct. at 1672.

22

Id. at 1673.

23

Id.

24

Id.

25

Id.
12

bears the burden of proving enhancement’s necessity.26 Finally, “a fee applicant seeking an
enhancement must produce ‘specific evidence’ that supports the award.”27 Justice Kennedy
provided guidance on the cases meriting a fee enhancement: “[i]t is proper for the Court today to
reject the proposition that all enhancements are barred; still, it must be understood that
extraordinary cases are presented only in the rarest of circumstances.”28
In Perdue, the Supreme Court concluded that courts must inquire into the existence of
superior attorney performance—not otherwise taken into account by the lodestar
calculation—when determining whether to award an enhancement for superior attorney
performance.29 First, “an enhancement may be appropriate where the method used in
determining the hourly rate employed in the lodestar calculation does not adequately measure the
attorney’s true market value”—such as if the hourly rate derives from a formula taking into
account only a single factor such as years since admission to the bar or other similar factors.30
Second, if litigation is exceptionally protracted and the attorney’s performance includes an
extraordinary outlay of expenses, courts must calculate the enhancement using a reasonable and
objective method capable of being reviewed on appeal, “such as applying a standard rate of
interest to the qualifying outlays of expenses.”31 Finally, compensation for delay can be made by

26

Id.

27

Id.

28

Perdue, 130 S. Ct. at 1677 (Kennedy, J., concurring).

29

Id. at 1674.

30

Id.

31

Id. at 1675-76.
13

basing the award on current rates or adjusting the fee based on historical rates to reflect its
present value, but even in the face of such compensation, “an enhancement may be appropriate
where an attorney assumes these costs in the face of an unanticipated delay, particularly where
the delay is unjustifiably caused by the defense.”32
In their Objections, Plaintiffs argue that the Magistrate Judge erred by not applying their
requested 1.2 multiplier to their lodestar amount. Specifically, they assert that the lodestar does
not adequately capture Sullivan’s true market value, as he worked as their same attorney
throughout “this unduly protracted litigation of [twelve] years (with more to come)” and “was
thoroughly familiar with the underlying facts, legal issues, and the specialized field of industrial
and organization psychology.”33 Additionally, Plaintiffs aver, without citation to authority, that
“[a] valid way to measure [P]laintiffs’ [attorney’s] true market value is to examine the costs
[Defendant] willingly paid its numerous attorneys, which it believed were necessary to defend
it.”34 Thus, Plaintiffs argue that these rare and exceptional circumstances merit enhancement of
their hourly rate to $450 per hour after application of the multiplier.35
In response, Defendant points out that the lodestar carries a “strong presumption” that it is
sufficient to compensate Plaintiffs’ attorney and that Plaintiffs have not produced specific
evidence to rebut the presumption.36 It argues that Plaintiffs cannot meet their burden to identify

32

Id. at 1675.

33

(Pls.’ Objections, D.E. # 618, at 7.)

34

(Id.)

35

(Id. at 8.)

36

(Def.’s Resp., D.E. # 620, at 5.)
14

a factor not subsumed within the lodestar calculation. Defendant casts Plaintiffs’ argument
regarding Sullivan’s longevity as their attorney as subsumed within several lodestar factors: the
skill and experience required, the nature and length of the relationship with the client, and similar
awards.37 Defendant submits that the Court should not rely on its anticipated appeal as
justification for the requested fee enhancement: “potential litigation in the future is by no means
[a] basis for enhancing the value of fees for past legal services, especially when those fees on
appeal are also recoverable.”38 Finally, the case’s protracted history should not serve as a ground
for the fee enhancement because delay is compensated by the lodestar amount itself.39
The Court will not apply a fee enhancement to the lodestar amount. The Court finds that,
even factoring in the delay in payment, this case has a procedural posture comparable to many
other civil rights cases in this District. Moreover, Perdue limits the application of multipliers to
cases with factors not already addressed in the lodestar amount. Here, the Court agrees with the
Magistrate Judge and Defendant: the lodestar amount and the twelve lodestar factors adequately
address all of Plaintiffs’ asserted factors for applying a fee enhancement. Accordingly, Plaintiffs’
objection is OVERRULED, and this portion of the R&R is ADOPTED.
Interest Rate on Attorney’s Fees and Expenses
Awards of prejudgment interest are compensatory, not punitive, and a finding of
wrongdoing by the defendant is not a prerequisite to such an award.40 Although awards of

37

(Id. at 6.)

38

(Id.)

39

(Id. at 6-7.)

40

EEOC v. Ky. State Police Dep’t, 80 F.3d 1086, 1098 (6th Cir. 1996).
15

backpay under Title VII ordinarily include compound interest because backpay awards make
claimants whole,41 backpay and attorney’s fees do not serve the same purpose. Attorney’s fees
under Title VII encourage attorneys to take on meritorious cases.42 Therefore, the decision of
whether to award simple or compound interest should serve that purpose.43
In their Objections, Plaintiffs argue that applying a simple interest rate, rather than a
compound interest rate, to their attorney’s fees and expenses will not make them whole.44
Plaintiffs cite to case law from the Second Circuit and argue that the Court will abuse its
discretion if it does not award compound interest.45 In response, Defendant points out that
Plaintiffs have not produced any authority requiring the Court to apply a compound interest rate
to an award of attorney’s fees and expenses.46 After distinguishing Plaintiffs’ Second Circuit
case and pointing out the differences between backpay and attorney’s fees, it submits that district
courts have wide discretion to award simple or compound interest, and it states that an award of
simple interest will adequately compensate Plaintiffs.47
Despite its research, the Court cannot find guidance on how to choose between applying
compound or simple interest to a request for attorney’s fees. And the parties have not directed
41

See id. (quoting Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir.

42

See Coulter v. Tennessee, 805 F.2d 146, 148 (6th Cir. 1986).

43

See id.

44

(Pls.’ Objections, D.E. # 618, at 8.)

45

(Id. at 8-9.)

46

(Def.’s Resp., D.E. # 620, at 7.)

47

(Id.)

1993)).

16

the Court to factors or guidelines to apply when choosing compound or simple interest.
Although Plaintiffs direct the Court to cases encouraging the application of compound interest to
awards of backpay, the Court finds that the different purposes of backpay and attorney’s fees
distinguish this reasoning. Backpay makes Title VII plaintiffs whole; attorney’s fees encourage
lawyers to take difficult, complex, and other cases they may not otherwise take. Applying this
latter purpose to this case, the Court finds that the R&R’s suggested interest rate of 2.35% per
annum is reasonable. Judge Donald applied a 2.35% per annum interest rate to Plaintiffs’
backpay award, and the R&R borrows this rate and applies it to Plaintiffs’ attorney’s fees as well.
As such, the Court agrees with the R&R’s recommendation to apply this interest rate to its
calculation of attorney’s fees. Moreover, neither party objected to this interest rate.
However, the Court disagrees with the R&R’s method of calculating interest. Although
the R&R recommended a simple interest rate, the Court finds that this case’s circumstances merit
the application of compound interest. First, the parties have litigated this case for over twelve
years, and Plaintiffs’ counsel has not received payment of attorney’s fees under Title VII.
Second, the Court finds the purpose of awarding attorney’s fees under Title VII to be important
to its decision: other cases’ comparable complexity and longevity could discourage attorneys
from taking them, potentially leaving important rights unvindicated. Accordingly, with these
factors in mind, the Court will award compound interest at the rate of 2.35% per annum to the
attorney’s fees and expenses requested in the Interim Motion. As discussed above, the Court will
not award interest for attorney’s fees or expenses requested in the Supplemental Motion.
Therefore, Plaintiffs’ objection is SUSTAINED, and the Court DECLINES to adopt this portion
of the R&R.
17

Award of Attorney’s Fees to Unsuccessful Non-Minority Plaintiffs
Attorney’s fees can be adjusted upward or downward based on the results obtained in the
case.48 Sometimes plaintiffs bring lawsuits on “distinctly different claims for relief that are based
on different facts and legal theories;” in such cases, “even where the claims are brought against
the same defendants, . . . counsel’s work on one claim will not be related to his work on another
claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been ‘expended in
pursuit of the ultimate result achieved.’”49 Thus, unrelated claims must be treated as though they
had been raised in separate lawsuits, and no fee may be awarded for services on unsuccessful
claims.50 The Supreme Court has identified three core areas rendering claims sufficiently
“related” to recover attorney’s fees: when “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,” when “the plaintiff’s claims for relief will involve a common core of facts or will be
based on related legal theories,” or when the case presents “only a single claim.”51
In its Objections, Defendant argues that Plaintiffs should not receive attorney’s fees for
the hours spent on the unsuccessful non-minority Johnson I Plaintiffs’ claims because those
claims are unrelated to successful claims.52 Defendant avers that “the facts associated with the
unsuccessful non-minority Plaintiffs’ race discrimination claims are entirely distinguishable from

48

See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

49

Id. at 434-35.

50

Id. at 435.

51

Id.

52

(Def.’s Objections, D.E. # 619, at 2-3.)
18

the disparate impact claims of the successful minority Plaintiffs.”53 Thus, Defendant submits that
the Interim Motion’s attorney’s fees should be adjusted proportionally to account for the nonminority Plaintiffs’ unsuccessful claims and states that a 31% reduction would be sufficient.54
In response, Plaintiffs argue that Defendant has not provided any specific evidence
establishing that this case is one of the “rare and exceptional” cases meriting a reduction for
unsuccessful claims.55 Furthermore, they contend that no basis exists for reducing attorney’s fees
“when the work performed was related and necessary for the minority [P]laintiffs to prevail on
their disparate impact race discrimination claim.”56 Plaintiffs distinguish a case from the
Southern District of New York relied on by Defendant, and they urge the Court to adopt the
R&R’s recommendation that no reduction in fees is necessary based on the allegedly limited
success of the allegedly non-minority Plaintiffs.57
The Court disagrees with Defendant: the non-minority Plaintiffs’ claims significantly
relate to the same factual circumstances forming the basis for the minority Plaintiffs’ claims
because both groups of plaintiffs sought to invalidate Defendant’s promotion process. Therefore,
the Court finds that the non-minority Plaintiffs’ claims share a common factual core with the
minority Plaintiffs’ claims, and the Court will not reduce Plaintiffs’ attorney’s fees to account for

53

(Id. at 3.)

54

(Id. at 4.)

55

(Pls.’ Resp., D.E. # 621, at 2.)

56

(Id. at 3.)

57

(Id. at 4-5.)
19

the non-minority Plaintiffs’ unsuccessful claims. For these reasons and the reasons stated in the
R&R, Defendant’s objection is OVERRULED, and this portion of the R&R is ADOPTED.
Award of Attorney’s Fees for Unsuccessful Claims by the Minority Plaintiffs
Whenever a plaintiff accomplishes excellent results, his or her attorney should recover a
fully compensatory fee.58 Even if he or she fails to prevail on every issue raised in the lawsuit,
the fee award does not necessarily merit reduction. For example, “[l]itigants in good faith may
raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to
reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.”59
Indeed, the most critical factor is the degree of success obtained,60 and this degree can be
evaluated by examining whether the hours reasonably expended in the litigation justify the relief
obtained.61 District courts should reduce attorney’s fees only in rare and exceptional
circumstances where specific evidence in the record requires it; “a proffer of alternative
arguments does not justify reducing an award, especially where the arguments were made on a
common set of facts and success on just one of the arguments would achieve the hoped-for
results.”62

58

Hensley, 461 U.S. at 435.

59

Id.

60

Id. at 436.

61

Id. at 435 n.11.

62

Isabel v. City of Memphis, 404 F.3d 404, 416 (6th Cir. 2005) (declining to reduce
attorney’s fees by 53% despite plaintiffs’ success on only one of four claims because plaintiffs
“could not have achieved better results”).
20

In its Objections, Defendant argues that the R&R erroneously included attorney’s fees
associated with the minority Plaintiffs’ unsuccessful claims. It points out that the minority
Plaintiffs did not succeed on seven of their nine legal theories and that the seven “unrelated,
unsuccessful claims” do not merit an award of attorney’s fees.63 In response, Plaintiffs argue that
the Sixth Circuit has rejected Defendant’s argument and that proffering alternative arguments
does not justify reducing an award.64 Plaintiffs submit that the invalidity of the 2000 promotional
process was the “common factual core” tying all of their claims together and rendering them
sufficiently related to merit an award of attorney’s fees.65 They also note that even “[i]f the
minority Plaintiffs had succeeded on any other claim or even two or more claims, they would not
have received anything more than what they obtained by prevailing on their Title VII disparate
impact claim.”66
Again, the Court disagrees with Defendant’s constrained definition of success. Plaintiffs
received the same relief that they requested in their Complaint: although they presented nine
different methods of arriving at that relief, and Judge Donald agreed with only two, those two
theories gave Plaintiffs all of the relief they requested. Judge Donald’s disagreement with
Plaintiffs’ alternative theories does not merit a reduction in Plaintiffs’ attorney’s fees. Plaintiffs
prevailed in this case to the degree they initially envisioned upon filing the lawsuit: accordingly,
they accomplished a high degree of success. The Court will not reduce Plaintiffs’ requested

63

(Def.’s Objections, D.E. # 619, at 5.)

64

(Pls.’ Resp., D.E. # 621, at 6.)

65

(Id.)

66

(Id.)
21

attorney’s fee for their alleged lack of success. Therefore, the Court OVERRULES Defendant’s
objection and ADOPTS this portion of the R&R.
Dr. DeShon’s Expert Fees
In its Objections, Defendant argues that Dr. DeShon’s fee stems from his evaluation of
the validity and reliability of the 2002 promotional process, and it notes that Judge Donald
rejected Plaintiffs’ challenges to this promotional process.67 Because Dr. DeShon’s analysis did
not contribute to Plaintiffs’ success, Defendant requests the Court to reduce his fees by 50% “to
more accurately reflect the unsuccessful legal claims.”68 In response, Plaintiffs argue that Dr.
DeShon’s participation in the lawsuit was not limited; rather, he “provided statistical analysis
showing the disparate impact caused by the 2000 test and every single test and assessment used
in the 2001-2002 retest.”69 They point out that Dr. DeShon’s review of alternative employment
practices was relevant to Plaintiffs’ Title VII claims, and they argue that his fees should not be
reduced.70
The Court finds that Dr. DeShon’s expertise contributed to Plaintiffs’ success. As
Plaintiffs state, his participation in the lawsuit related to Plaintiffs’ Title VII claims and was not
limited to a single area of the litigation. Accordingly, the Court will not reduce Plaintiffs’
expenses related to Dr. DeShon. Therefore, Defendant’s objection is OVERRULED, and this
portion of the R&R is ADOPTED.

67

(Def.’s Objections, D.E. # 619, at 6.)

68

(Id.)

69

(Pls.’ Resp., D.E. # 621, at 7.)

70

(Id.)
22

CONCLUSION
For the foregoing reasons, the Magistrate Judge’s R&R is ADOPTED IN PART,
Plaintiffs’ Interim Motion is GRANTED IN PART AND DENIED IN PART, and Plaintiffs’
Supplemental Motion is GRANTED IN PART AND DENIED IN PART. Therefore,
attorney’s fees and expenses are awarded in the following amounts:
•

$528,577.50 plus compound interest for attorney’s fees for hours expended prior to the
Interim Motion. (2,116.81 total hours - 2.5 deducted hours x $250 per hour.) Applying
2.35% per annum compound interest from December 28, 2006 to August 23, 2012, would
yield a compound interest payment of $74,255.78.

•

$212,160.00 in attorney’s fees for hours expended after the Interim Motion. (652.80 total
hours x $325 per hour.)

•

$156,466.26 plus compound interest for expenses incurred prior to the Interim Motion
(after deducting $5,150 withdrawn by Plaintiffs). Applying 2.35% per annum compound
interest from December 28, 2006 to August 23, 2012, would yield a compound interest
payment of $21,980.75.

•

$3,950.20 for expenses incurred after the Interim Motion.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: August 23, 2012.

23