Taylor v. Republic Services, Inc. et al

Filing 320

MEMORANDUM OPINION AND ORDER-IT IS HEREBY ORDERED THAT Plaintiff Jennifer Taylor's Petition for Attorneys' Fees and Costs (Doc. 295) is GRANTED in PART and DENIED in PART; IT IS FURTHER ORDERED that pursuant to Federal Rule of Civil Procedu re 58, judgment is entered in favor of Plaintiff Jennifer Taylor and against Defendant Republic Services, Inc. for attorneys' fees and costs in the amounts set forth below: (a) Attorneys' fees in the amount of $559,572.00;(b) Taxable costs in the amount of $18,080.06; and 26 (c) Non-taxable costs in theamount of $42,907.30. Signed by District Judge Gerald Bruce Lee on 1/29/14. (gwalk, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

JENNIFER TAYLOR,

Plaintiff,
Case No. 1:12-cv-00523-GBL-IDD

v.

REPUBLIC SERVICES, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on PlaintiffJennifer Taylor ("Ms. Taylor")'s Petition for

Attorneys' Fees and Costs (Doc. 295). This is an employment discrimination action. Ms. Taylor

brought Title VII and state law claims against her former employer and colleagues for gender
discrimination, sexual harassment and hostile work environment in violation of Title VII;
retaliation, retaliatory discharge and hostile work environment in violation of Title VII; common

law wrongful termination of employment for opposing or resisting criminal conduct; negligent

retention of employees; tortious interference with business expectancy; common lawconspiracy;
and intentional infliction of emotional distress. Following a five-day non-jury trial on Ms.
Taylor's claims for hostile work environment and retaliatory discharge, the Court returned a

verdict in favor of Ms. Taylor on her claim for retaliatory discharge only (Doc. 288).
Subsequently, Ms. Taylor filed this Petition for Attorneys' Fees and Costs.

There are three issues before the Court. The first issue is whether Ms. Taylor's attorneys'
fees represent a reasonable number of hours at a reasonable rate in litigating this employment
discrimination action. The second issue is whether the Court should reduce the proposed amount
of attorneys' fees due to Ms. Taylor's limited success in this action as a whole. The third issue is

whether the Court should grant in full Ms. Taylor's request for costs, which include taxable costs
in the amount of $36,160.12 and non-taxable costs in the amount of $86,314.61.
The Court grants in part and denies in part Ms. Taylor's Petition for Attorneys' Fees and
Expenses.

The Court finds that the proposed fees represent a reasonable number of hours

charged at a reasonable rate based upon the skill and experience of Ms. Taylor's counsel and the

vigorous defense advanced by Defendants. The Court, however, must reduce the lodestar figure
by 50 percent to reflect Ms. Taylor's limited success in this action. Thus, the Court awards Ms.
Taylor $559,572.00 in attorneys' fees.

The Court also finds that Ms. Taylor is entitled to reasonable and necessary costs in the

action. After careful consideration, the Court holds that Ms. Taylor is entitled to $18,080.06 in

taxable costs and $42,907.30 in non-taxable costs, which constitutes a 50 percent reduction to
reflect Ms. Taylor's limited success in this action.
I.

BACKGROUND

This case concerns Ms. Taylor's claims that she was subject to systematic unwelcome

sexual harassment by her former employer and co-workers for four years, which ultimately led to

her termination of employment.1
On May 11, 2012, Ms. Taylor filed her Amended Complaint in this Court, asserting the

following claims against Defendants Republic Services, Inc., Republic Services of Virginia,
LLC, Jason Callaway, Ronald Krall, Douglas Murphy, Christopher Rains and Daniel E.
Jameson: gender discrimination, sexual harassment and hostile work environment in violation of

Title VII (Count I); retaliation, retaliatory discharge and hostile work environment in violation of

Title VII (Count II); common law wrongful termination of employment for opposing or resisting

1The facts ofthis case are more fully described in the Court's sixty-page Memorandum Opinion
and Orderdated September 16, 2013 (Doc. 288).

criminal conduct (Count III); negligent retention of employees (Count IV); tortious interference
with business expectancy (Count V); common law conspiracy (Count VI); and intentional
infliction of emotional distress (Count VII). Ms. Taylor requested compensatory, punitive and
equitable relief.

The parties vigorously litigated this action. On August 17, 2012, the Court granted
Defendants' Motion to Dismiss as to Counts III, IV, VI and VII, dismissing Ms. Taylor's claims
for common law wrongful termination of employment for opposing or resisting criminal
conduct, negligent retention of employees, tortious interference with business expectancy and
intentional infliction of emotional distress. On December 14, 2012, the Court granted Ms.
Taylor's Motion for Reconsideration and reinstated Count III, Ms. Taylor's claim for common

law wrongful termination of employment for opposing or resisting criminal conduct. At the
summary judgment stage, only Counts I, II, III and V remained. On December 20, 2012, the
Court granted Defendants' Motions for Summary Judgment on Counts I and V of the Amended

Complaint and Partial Summary Judgment on Count II of the Amended Complaint, dismissing
Ms. Taylor's claims for gender discrimination, various claims of retaliation and tortious

interference with business expectancy. The Court subsequently granted Defendants' Motion for
Summary Judgment on Ms. Taylor's claim for common law wrongful termination of

employment for opposing or resisting criminal conduct in Count III of the Amended Complaint.
On May 6, 2013, the Court conducted a five-day nonjury trial on Ms. Taylor's remaining
claims for hostile work environment and retaliatory discharge. On September 16, 2013, the
Court issued its ruling, holding that

(1) Judgment is entered in favor of Defendants Republic Services, Inc. and
Republic Services of Virginia, LLC and against Plaintiff Jennifer Taylor on the
claim of hostile work environment as stated in Count I of the Amended
Complaint;

(2) Judgment is entered in favor of Plaintiff Jennifer Taylor and against
Defendant Republic Services, Inc. on the claim of retaliatory discharge as stated
in Count II ofthe Amended Complaint; and

(3) Plaintiff Jennifer Taylor is awarded damages against Defendant
Republic Services, Inc. on Count II of the Amended Complaint in the amounts set
forth below:

(a)

Back pay damages in the amount of $377,734 pursuant to
Title VII ofthe Civil Rights Act of 1964;

(b)

Front pay damages in the amount of $804,791 pursuant to
Title VII of the Civil Rights Act of 1964;

(c)

Compensatory damages in the amount of $50,000 pursuant
to42U.S.C. §1981a(b)(3);and

(d)

Reasonable attorneys' fees and costs in an amount to be
determined in a subsequent order.

(Doc. 288).

On September 30, 2013, Ms. Taylor filed this Petition for Attorneys' Fees and
Costs (Doc. 295). Ms. Taylor seeks $1,119,144.00 in attorneys' fees; non-taxable costs

and expenses in the amount of $86,314.612; and taxable costs in the amount of
$36,160.12 (Docs. 296; 310).

In total, Ms. Taylor is requesting $1,241,618.73 in

attorneys' fees and costs. Id. Defendants Republic Services, Inc. and Republic Services
of Virginia, LLC ("Defendants") assert numerous challenges to Ms. Taylor's motion.

First, Defendants contend that Ms. Taylor was not the prevailing party in this action as

Defendants prevailed on six of the seven claims pursued in this action.

Second,

2 In the Reply in Support of the Petition for Fees and Costs, Ms. Taylor concedes an error in her
calculation of non-taxable costs, and reduces her request from $103,023.61 to $86,314.61 (Doc.
310).

3Defendants Republic Services, Inc. and Republic Services of Virginia, LLC jointly responded
to Ms. Taylor's Petition for Attorneys' Fees and Costs. Because judgment was entered against
Defendant Republic Services, Inc. only, the award of attorneys' fees and costs herein is against
Defendant Republic Services, Inc..

Defendants argue that Ms. Taylor's attorneys' fees rates are inflated and should be

reduced. Third, Defendants proclaim that Ms. Taylor's fee petition includes unnecessary
charges related to unsuccessful claims. Fourth, Defendants argue that the costs sought by
Ms. Taylor are factually unsupported, related to her unsuccessful claims, and are
therefore not recoverable.
II.

STANDARD OF REVIEW

Title VII expressly provides that a district court "[i]n its discretion, may allow the
prevailing party ... a reasonable attorney's fee as part of the costs [of a Title VII action] ...." 42

U.S.C. § 2000e-5(k).

To determine the appropriate amount of attorney's fees, "a court must

first determine a lodestar figure by multiplying the number of reasonable hours expended times a

reasonable rate." Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009)

(citing Grissom v. Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)).

In determining the

reasonableness of the number of hours and the rate, the district court should be guided by the
twelve Johnson/Barber factors:

(1) The time and labor expended; (2) the novelty and difficulty of the questions
raised; (3) the skill required to properly perform the legal services rendered; (4)
the attorney's opportunity costs in pressing the instant litigation; (5) the
customary fee for like work; (6) the attorney's expectations at the outset of the
litigation; (7) the time limitations imposed by the client or circumstances; (8) the
amount in controversy and the results obtained; (9) the experience, reputation and
ability of the attorney; (10) the undesirability of the case within the legal
community in which the suit arose; (11) the nature and length of the professional
relationship between attorney and client; and (12) attorney's fees awards in
similar cases.

Id. at 243-44 (citing Barber v. KimbrelVs Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978))
(explaining that the Fourth Circuit has adopted the twelve factors set forth in Johnson v. Ga.

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)). When considering the Johnson/Barber

factors, the court need neither robotically list each factor nor comment on inapplicable factors.

Bergstrom v. Dalkon Shield Claimants Trust (In re A.H Robins Co.), 86 F.3d 364, 376 (4th Cir.
1996).

The court then "subtracts the fees for hours spent on unsuccessful claims unrelated to
successful ones." Robinson, 560 F.3d at 244. Lastly, "[o]nce the court has subtracted the fees
incurred for unsuccessful, unrelated claims, it then awards some percentage of the remaining

amount, depending on the degree of success enjoyed by the plaintiff." Id. (quoting Grissom, 549

F.3d at 321 (4th Cir. 2008)) (alteration in original). Becausethe "degree of success obtained by
the plaintiff is the 'most critical factor' in determining the reasonableness of a fee award, the
district court 'may simply reduce the award to account for the limited success.'" Lilienthal v.

City ofSuffolk, 322 F. Supp. 2d 667, 675 (E.D. Va. 2004) (quoting Hensley, 461 U.S. at 436-37).
There is no "precise rule or formula for making this reduction to the lodestar amount"; however,
the court may either reduce the overall award "to account for limited success" or "identify
specific hours that should be eliminated." Hensley v. Eckerhart, 461 U.S. 424,436-37 (1983).
III.

A.

DISCUSSION

ATTORNEYS' FEES

The Court grants in part and denies in part Ms. Taylor's Petition for Attorneys' Fees and

Costs. The Court finds that attorneys' fees in the amount of $1,119,144.00 are reasonable both
in terms of hours and rates. The Court, however, must reduce the fee request by 50 percent to
reflect Ms. Taylor's limited success in this action as a whole.

Accordingly, the Court finds

$559,572.00 in attorneys' fees to be appropriate based upon consideration of the Johnson/Barber
factors and the standard set forth in Hensley v. Eckerhart, 461 U.S. 424,436-37 (1983).

1.

The Prevailing Party

The Court finds that, as a prevailing party, Ms. Taylor is entitled to reasonable attorneys'

fees. Whether Ms. Taylor is entitled to recover attorneys' fees in this action turns on whether

she is a "prevailing party" within the meaning of 42 U.S.C. § 2000e-5(k). The Supreme Court
has broadly construed the term "prevailing party." See Truesdell v. Phila. Hous. Auth., 290 F.3d
159, 163 (2002) (citing Hensley, 461 U.S. at 433). A "prevailing party" is a party that succeeds
on any significant issue in litigation and attains some of the benefit sought in bringing suit.

Hensley, 461 U.S. at 433. Despite the fact that Ms. Taylor was only successful on one of her
seven claims before the Court, she nonetheless is a prevailing party as she succeeded on her

claim for retaliatory discharge and was awarded a judgment in the amount of $1,232,525.00. As
such, Ms. Taylor is entitled to recover reasonable attorneys' fees.
2.

Calculation of the Lodestar Figure
a.

Hourly Rate

The Court finds that Ms. Taylor's proposed hourly rate is reasonable based upon the

declarations of lead counsel and supporting declarations of practitioners from the Washington,
D.C. and Northern Virginia legal market, and based upon the 2011 Range of Hourly Rates for
Northern Virginia that has been adopted by this Court in two recent cases.

The determination of the hourly rate is the critical inquiry in assessing a reasonable fee,
and the burden is on Ms. Taylor to demonstrate that the rate requested is reasonable.

Robinson,

560 F.3d at 244. To meet this burden, Ms. Taylor must provide not only affidavits of her own
attorneys, but also "specific evidence of the prevailing market rates in the relevant community
for the type of work for which [she] seeks an award." Id. (quoting Plyler v. Evatt, 902 F.2d 273,

277 (4th Cir. 1990)). Specific evidence that is "sufficient to verify the prevailing market rates

[includes] affidavits of other local lawyers who are familiar both with the skills of the fee

applicants and more generally with the type of work inthe relevant community." Robinson, 560
F.3dat245.

Ms. Taylor was represented by Charleson Bredehoft Cohen & Brown, P.C. of Reston,
Virginia, and seeks a fee award for 2,082.9 hours of attorney time and 606.4 hours of paralegal
time based upon the following rates:
Table 1: Ms. Taylor's Requested Hourly Rates
Attorney

Experience (years)

Rate (per hour)

Elaine C. Bredehoft

29

$550 through 3/31/13;

Brian A. Scotti

9

Heather Austin Jones

11

Kathleen Z. Quill
Daphne Shih Gebauer

17

$600 thereafter
$475
$425
$545
$400

6

$375 through 11/4/12;

Aseil Abu-Baker

3

$400 thereafter
$325

Carla D. Brown

14

Paralegals

Kathy M. Baker

30

Leslie A. Hoff

23

Alexandra C. Bredehoft

1

Abbas A. Sabur

1

$250
$250
$135
$135

Doc. 296-2. In support of her contention that the hourly rates she seeks are consistent with the
prevailing market rates in this district, Ms. Taylor submitted declarations from her lead counsel,
Ms. Carla Brown and Ms. Elaine C. Bredehoft, setting forth in detail their credentials and

experience, as well as the qualifications of associate counsel. In particular, Ms. Bredehoft has
practiced law for twenty-nine years and has been the sole or lead counsel for the prevailing party
in twenty-three employment discrimination cases in federal and state courts throughout Northern

Virginia (Doc. 296-18). Ms. Brown has fourteen years of experience handling employment

related matters in state and federal courts throughout Virginia. Id. Ms. Bredehoft and Ms.

Brown aver that the rates requested represent "the standard hourly rate charged for all clients

represented on other than a contingent-fee or full or partial pro bono basis" (Docs. 296-1; 29618).

Ms. Taylor also provides the declarations of two experienced Washington, D.C.-based

employment litigation attorneys, Debra S. Katz and Nicholas Woodfield, who attest to the
reasonableness of the rates charged by Ms. Taylor's counsel in comparison to the rates identified

inthe Laffey4 and Adjusted Laffey Matrices (Docs. 296-19; 296-20).
Additionally, Ms. Taylor includes the declaration of prominent Northern Virginia-based

civil litigation attorney Craig C. Reilly (Doc. 296-21). Mr. Reilly, an expert on legal fees in
Northern Virginia, prepared a matrix of hourly rates for complex civil litigation in Northern
Virginia, which was adopted by this Court in Vienna Metro v. Pulte Home Corp., Case No. 1:10cv-00502, and Tech Systems, Inc. v. Pyles, Case No. l:12-cv-00374. Id. The rates set forth in
the Vienna Metro Matrix are as follows:
Table 2: Vienna Metro Matrix

2011 Range of Hourly Rates in Northern Virginia
Paralegal
$130-350

Years of Experience

Hourly Rate

1-3

4-7

8-10

11-19

20+

$250-

$350-

$465-

$520-

$505-

435

600

640

770

820

(Doc. 296-21).

While the Laffey and Adjusted Laffey Matrices may be useful references for determining
a reasonable hourly rate in this region, they are neither sufficient to show the reasonableness of

4The Laffey Matrix is statement of market attorneys' fee rates for the Washington-Baltimore
area published and periodically updated by the United States Attorney's Office for the District of
Columbia. See Robinson, 560 F.3d at 244.

an hourly rate nor are they controlling in this Court. See Newport News Shipbuilding & Dry
Dock Co. v. Holiday, 591 F.3d 219, 229 (4th Cir. 2009) ("[T]he Laffey matrix is a useful starting

point to determine fees, not a required referent") (citing Grissom, 549 F.3d at 322). For this
reason, and despite Defendants' contentions to the contrary, the Court finds that the Vienna
Metro Matrix, not the Laffey Matrices, applies in this action.

Having carefully reviewed the submissions of the parties, the Court finds that the hourly

rates sought by Ms. Taylor's counsel fall well within the prevailing hourly rates charged by
attorneys in the Eastern District of Virginia of similar experience. Thus, the Court will apply the
rates requested by Ms. Taylor's as set forth in Table 1.

b.

Number of Hours Expended

The Court finds that the number of hours expended by Ms. Taylor's counsel to be

reasonable giventhe amount in controversy and the results obtained, the novelty and difficulty of
the questionspresented and the time and labor expendedon the litigation as a whole.

The second step in the lodestar analysis is to determine what hours were reasonably

expended on the litigation. In calculating this, the Court should exclude excessive, unnecessary
and redundant hours, and also time spent litigating discrete and unsuccessful claims. Hensley,
461 U.S. at 433-34.

Ms. Taylor seeks fees in the following amount:
Table 3: Ms. Taylor's Requested Fees
Individual

Hours

Adjusted

Hourly Rate

Total Fee

131.8 hours at

$550 through

$188,290.00

$550 rate;

3/31/13; $600

19.3 hours at

thereafter

$600 rate
1,1099

$475

Hours

Elaine C. Bredehoft

Carla D. Brown

324.8

1,133.3

10

$522,025.00

Brian A. Scotti

480

449.4

$425

$190,995.00

Heather Austin

30.4

30.4

$545

$13,680

Kathleen Z. Quill

27.6

27.6

$400

$11,040.00

Daphne Shih

126.3

59.6 hours at

$375 through

$44,510.00

$375 rate;

11/4/12; $400

55.4 hours at

thereafter

Jones

Gebauer

$400 rate
Aseil Abu-Baker

44.6

44

$325

$14,300

Kathy M. Baker

45.1

44.3

$250

$11,075.00

Leslie A. Hoff

433.2

411.7

$250

$102,925.00

Alexandra C.

107.9

107.9

$135

$14,566.50

42.5

42.5

$135

$5,737.50

TOTAL

$1,119,144.00

Bredehoft

Abbas A. Sabur

(Docs. 296-1; 296-2).

Compiling raw totals of hours spent, however, does not complete the inquiry. It does not

follow that the amount of time actually expended is the amount of time reasonably and

justifiably expended. A court must ensure that the prevailing attorneys have exercised "billing
judgment." Hensley, 461 U.S. at 434. Billing judgment consists of winnowing the hours actually
expended down to the hours reasonably expended. Time that is "excessive, redundant, or
otherwise unnecessary" should be excluded. Id. The Court will consider three Barber/Johnson

factors—the time and labor expended; the novelty and difficulty of the case; and the amount in

controversy and the results obtained—in assessing the reasonableness of the hours claimed by
Ms. Taylor's counsel.

11

i.

Amount in Controversy and Results Obtained

Ms. Taylor originally asserted seven claims against seven defendants for gender
discrimination, sexual harassment and hostile work environment in violation of Title VII (Count

I); retaliation, retaliatory discharge and hostile work environment in violation of Title VII (Count

II); common law wrongful termination of employment for opposing or resisting criminal conduct
(Count III); negligent retention of employees (Count IV); tortious interference with business
expectancy (Count V); common law conspiracy (Count VI); and intentional infliction of
emotional distress (Count VII). Looking at Ms. Taylor's claims in this fashion, it is clear that
she prevailed on only one claim against only one defendant.
Early in the case, Defendants prevailed on their Motion to Dismiss, which resulted in the
dismissal of Ms. Taylor's claims for (1) wrongful termination in violation of public policy, (2)

negligent retention of employees, (3) common law conspiracy, and (4) intentional infliction of
emotional distress. Defendants then went on to prevail on several Partial Motions for Summary
Judgment, which resulted in judgment against Ms. Taylor on her claims for (1) tortious
interference with business expectancy, (2) gender discrimination, and (3) retaliation on Ms.
Taylor's theories, other than retaliatory discharge. Ms. Taylor proceeded to trial on her claims

for retaliatory discharge and sexual harassment hostile work environment. She ultimately
succeeded only on her claim for retaliatory discharge and was awarded back pay damages in the

amount of $377,734, front pay damages in the amount of $804,791 and compensatory damages
in the amount of $50,000.

Although attorney's fees should not be awarded for time spent litigating (or preparing to
litigate) unsuccessful, severable claims, they may be awarded for time spent on unsuccessful
claims if such claims are interconnected to the successful claims, i.e., the claims rest on the same

12

facts or related legal theories. Hensley, 461 U.S. at 435. Defendants argue that Ms. Taylor's

attorneys are not entitled to fees for time expended on her unsuccessful claims, which they
assert, are distinct and unrelated. This Court disagrees. All of Ms. Taylor's claims in this
action—her Title VII claims for hostile work environment, sexual harassment retaliation,

retaliatory discharge and gender discrimination, as well as her state law claims for wrongful
termination in violation of public policy, negligent retention of employees, tortious interference

with business expectancy civil conspiracy, common law conspiracy and intentional infliction of
emotional distress—arise from a common nucleus of facts and are based on related legal

theories. In support of her retaliatory discharge claim, Ms. Taylor had to establish that her

employment was terminated as a result of her engagement in protected activity in violation of
Title VII. This necessarily required Ms. Taylor to proffer evidence regarding the conduct she
resisted, opposed and complained of. Similarly, Ms. Taylor's claims against the individual
defendants were premised on their alleged participation in the harassment and their alleged

attempts to punish her for complaining of harassing conduct. Thus, the Court finds that that each
of Ms. Taylor's claims are substantially interrelated and declines to reduce Ms. Taylor's fee

request asit relates to the time expended on her unsuccessful claims.5
ii.

Novelty and Difficulty of Questions Raised / Time and Labor
Expended

As mentioned previously, this was an employment discrimination action that involved

Title VII and state law claims. While this case did not involve particularly novel or difficult

5The Court notes Ms. Taylor's submission that she voluntarily excluded 106.1 hours of
attorney time and 22 hours of paralegal time which, she claims, reflects "time expended on
claims that were either dismissed by the Court on summary judgment, or on which plaintiff was
not the prevailing party at trial" (Doc. 296-1). Ms. Taylor also attests that she does not seek an
award for those time keepers that had "only peripheral involvement in the case" which resulted
in a reduction of 35.7 hours of attorney time and 12.9 hours of paralegal time. Id.

13

legal orfactual issues, it did involve an overwhelming number ofdocuments and discovery. For
example, Defendants filed one motion todismiss, three motions for summary judgment, a motion
for sanctions based upon alleged spoliation of evidence, and a vigorously fought motion to strike
Ms. Taylor's jurydemand. Responding to each motion undoubtedly required great efforts onthe

part of Ms. Taylor's attorneys. As such, this factor supports the reasonableness of the hours
expended by Ms. Taylor's counsel.

Having considered the relevant Johnson/Barber factors, the Court finds the lodestar
amount of $1,119,144.00 to be appropriate.
3.

Adjustment of the Lodestar Figure

The Court finds that a 50 percent reduction of the lodestar figure is appropriate to account
for Ms. Taylor's limited success in this action.

The calculation of the lodestar figure does not end the Court's inquiry. Although there is

a "strong presumption that the lodestar calculation yields a reasonable attorneys' fees award,"
Hensley directs courts to "focus on the significance of the overall relief obtained by the plaintiff
in relation to the hours reasonably expended on the litigation," 461 U.S. at 435, and outlines a

spectrum of potential outcomes: "Where a plaintiff has obtained excellent results, his attorney
should recover a fully compensatory fee. Normally this will encompass all hours reasonably
expended on the litigation, and indeed in some cases of exceptional success an enhanced award
may be justified." Id. But Hensley also recognized that the full lodestar may constitute an
"excessive" fee award where the "plaintiff has achieved only partial or limited success." Id. at
436. Hensley specifically noted that, "[t]his will be true even where the plaintiffs claims [are]
interrelated, nonfrivolous, and raised in good faith," because "Congress has not authorized an

14

award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever
conscientious counsel tried the case with devotion and skill." Id.

To determine an appropriate award in a case in which the plaintiff does not achieve

complete success, the Fourth Circuit has relied upon the process outlined by the Supreme Court
in Hensley. See Johnson v. City ofAiken, 278 F.3d 333, 336-37 (4th Cir. 2002) (citing Hensley,
461 U.S. 433). Hensley instructs that where a party has succeeded in only some of her claims for
relief, as is the case here, a court should consider (1) whether the successful claims are related to

the unsuccessful claims, and (2) whether the plaintiff achieved a level of success that makes the
hours reasonably expended a satisfactory basis for making a fee award. Hensley, 461 U.S. at
434.

With respect to the first factor, the Court has already determined that the unsuccessful

claims for retaliation, hostile work environment, gender discrimination, wrongful discharge in

violation of public policy, negligent retention of employees, civil conspiracy, intentional
infliction of emotional distress, and tortious interference with business expectancy involve
significantly overlapping facts, and are thus related to Ms. Taylor's successful claim for

retaliatory discharge. Therefore, the Court will not deviate from the lodestar figure due to Ms.
Taylor's failure on her unsuccessful claims.

With respect to the second factor, a court has discretion to adjust the attorneys' fees from

the lodestar figure based upon the significance of the overall relief obtained by plaintiff in

relation to the hours reasonably expended on litigation. Hensley, 461 U.S. at 435. If a plaintiff
has achieved only limited or partial success, the lodestar figure may be an excessive amount. Id.
at 436. "This will be true even where plaintiffs claims were interrelated, nonfrivolous, and

raised in good faith." Id. In making adjustments on this basis, a court may attempt to identify

15

specific hours that should be eliminated, or it may simply reduce the award to account for the
limited success. Id. However, a court cannot calculate what constitutes a reasonable award of

attorney's fees by utilizing a mathematical formula that compares the successful to the
unsuccessful claims because, as Hensley instructs, "[t]here is no precise rule or formula for

making these [fee] determinations." 461 U.S. at436. Here, Ms. Taylor's success inthis case was

unquestionably limited. She presented seven distinct claims against seven defendants. Ms.
Taylor succeeded on only one claim against one defendant. While she was awarded a substantial
sum on her claim for retaliatory discharge, Ms. Taylor's failure on the remaining six counts

precluded her from achieving the full measure ofsuccess she sought in the lawsuit. The fact that
Ms. Taylor did not prevail against the majority of defendants nor on the claims she clearly
deemed an important part of her case, indicates that a reduction is appropriate. Id. at 440 ("A
reduced fee is appropriate if the relief, however significant, is limited in comparison to the scope
of litigation as a whole."). In the exercise of discretion, the Court will apply an across-the-board
percentage cut to reduce the lodestar figure, rather than eliminate specific hours from Ms.
Taylor's fee request because of the difficulty in parsing with a scalpel each item of each time
entry submitted. Thus, this Courtwill reduce Ms. Taylor's fee awardby 50 percent, resulting in a
fee award of $559,572. See Bennett v. CSX Transp, Inc., 905 F.Supp.2d 704, 710 (E.D.N.C.

2012) (lodestar amount was reduced by 50 percent to reflect plaintiffs limited success); Miller v.
Pilgrim's Pride Corp., Case No. 5:05cv00064, 2007 WL 2570219, at *7 (W.D. Va. Aug. 31,
2007) (same); Lilienthal, 322 F. Supp. 2d at 675 (lodestar figure reduced by 40 percent to
account for plaintiffs partial success).
For these reasons, the Court determines that a lodestar figure of $559,572.00 is
reasonable.

16

B.

COSTS

The Court finds that Ms. Taylor is entitled to taxable costs in the amount of $36,120.12
and non-taxable costs in the amount of $86,314.61 because these costs are sufficiently

documented and were necessarily incurred in litigating this action. The Court, however, reduces

the overall cost award by 50 percent to reflect Ms. Taylor's limited success inthis action.
Unless otherwise directed, costs—other than attorneys' fees—should be allowed to the

prevailing party. Fed. R. Civ. P. 54(d). Rule 54 does not grant the district court "unrestrained
discretion to reimburse the winning litigant for every expense he has seen fit to incur." Farmer v.
Arabian Am. Oil. Co., 379 U.S. 227,234 (1964). Accordingly, the court may only tax those costs

authorized by statute. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 444-45 (1987).
However, the court has wide latitude to award costs, so long as the costs are enumerated in the

general taxation-of-costs statute, 28 U.S.C. § 1920. Id. Moreover, the Fourth Circuit has held that
Rule 54(d)(1) creates a presumption that the prevailing party will be awarded costs. Fells v.

Virginia Dep't ofTransp., 605 F. Supp. 2d 740, 742 (E.D. Va. 2009) (citing Cherry v. Champion
Int'l Corp., 186 F.3d 442,446 (4th Cir. 1999)).
Pursuant to 28 U.S.C. § 1920, a court may tax the following costs: (1) fees of the clerk of
court and marshal; (2) court-reporter fees for all or any part of stenographic transcripts

"necessarily obtained for use" in the case; (3) fees for printing and witnesses; (4) fees for
exemplification and copies of papers "necessarily obtained for use" in the case; (5) docket fees;
and (6) compensation for court appointed experts.
1.

Prevailing Party

As discussed supra in Section A. 1, the Court finds that Ms. Taylor is a prevailing party in
this action, as she succeeded on her claim for retaliatory discharge. Thus, Ms. Taylor is entitled

17

to reasonable attorneys' fees and costs pursuant to 42 U.S.C. § 2000e-5(k). However, as the

prevailing party, Ms. Taylor bears the burden ofdemonstrating that the costs are allowable under
§ 1920. See Cofield v. Crumpler, 179 F.R.D. 510, 514 (E.D. Va. 1998). Once the prevailing
party has met this burden, the burden shifts to the party or parties that did not prevail to identify
any impropriety in taxingthe proposed costs. Id.
2.

Costs Related to Unsuccessful Claims

As discussed supra in Section A.b.i, the Court finds that Ms. Taylor's successful and
unsuccessful claims arise from a common core of facts and are based on related legal theories.

Therefore, the Court will not subtract from Ms. Taylor's request those costs incurred on her
unsuccessful claims.
3.

Taxable Costs

After a careful review of the submissions of the parties, the Court finds that the
$36,160.12 in taxable costs Ms. Taylor seeks are warranted. Her request may be broken down as
follows:

Table 4: Ms. Taylor's Bill of Costs
Taxable Costs

Bill of Costs Item
Fees for the Clerk

$

346.00

Fees for printed or electronically recorded transcripts necessarily
$ 27,350.01
($1,363.00)

obtained for use in the case:

Pretrial Hearing Transcripts
Trial Transcript
Deposition Transcripts

($2,352.00)
($23,635.01)
$

Witness Fees

650.00

Fees for exemplification and the costs of making copies of any materials
where copies where necessarilv obtained for use in the case
Docket fees under 28 U.S.C. § 1923
TOTAL

$ 7.786.61
$
27.50
$ 36.160.12

(Doc. 294).

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Defendants object to nearly every fee sought by Ms. Taylor. First, Defendants argue that

the expenses related to the pretrial hearings are notrecoverable as the pretrial hearing transcripts
were not used at trial. Second, Defendants contend that the expenses related to copying costs

and trial transcripts are not recoverable because they wereprepared solely for the convenience of
Ms. Taylor's counsel.

Third, Defendants object to the witness fees because none of the

witnesses whom Ms. Taylor subpoenaed testified at trial (Doc. 300).
a.

Pretrial Hearing and Trial Transcripts

Ms. Taylor seeks $1,363 in costs incurredon seven pretrial hearing transcripts and $2,352
for trial transcripts. (Doc. 294). Under § 1920(2), fees of the court reporter for all or part of the
stenographic transcript may be taxed when it "was necessarily obtained for use in the case, that
is, whether it was necessary to counsel's effective performance and proper handling of the case."

See Bd. ofDir., Water's Edge, v. Anden Group, 135 F.R.D. 129, 136 (E.D. Va. 1991); Marcoin,

Inc. v. Edwin K. Williams & Co., 88 F.R.D. 588, 590 (E.D. Va. 1980) (finding that costs of
pretrial transcript of hearing on plaintiffs motion to compel answers to interrogatories should be
taxed). Ms. Taylor states that the pretrial hearing transcripts were used during discovery and

assisted in her preparation for trial (Doc. 308). Ms. Taylor also attests that the trial transcript
was necessary for a post-trial briefing that the Court requested in response to two new United
States Supreme Court decisions that had a direct impact on the issues before the Court. Id.

The Court finds that Ms. Taylor has satisfied her burden in demonstrating that the pretrial
hearing and trial transcripts were necessary for trial, and awards Ms. Taylor full costs for these
transcripts.

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b.

Deposition Transcripts

Ms. Taylor seeks $23,635.01 in costs incurred for twenty-two deposition transcripts. The
Fourth Circuit recognizes that an award costs for deposition transcripts is proper whenthe taking

of a deposition is reasonably necessary at the time of its taking. LaVay Corp. v. Dominion Fed.
Savings & Loan Ass'n, 830 F.2d 522, 528 (4th Cir. 1987); see also Cofleld, 179 F.R.D. at 518;
Jop v. City of Hampton, 163 F.R.D. 486, 488 (E.D. Va. 1995). It is not necessary for the
information from the deposition to be used at trial. Cofield, 179 F.R.D. at 518; Scallet v.
Rosenblum, 176 F.R.D. 522, 526 (W.D. Va. 1997); see also Water's Edge, 135 F.R.D. at 132-34.
Even if it is not used at trial, "[a] deposition taken within the proper bounds of discovery" is

normally "deemed to be 'necessarily obtained for use in the case.'" Cofield, 179 F.R.D. at 518.

The only requirement is that the information be "relevant and material" for the preparation in the
litigation. Id; Ford v. Zalco Realty, Inc., 708 F. Supp. 2d 558, 562 (E.D. Va.2010). Thus, an
award of costs is proper when the material is "necessary to counsel's effective performance and
proper handling of the case." Marcoin, 88 F.R.D. at 590.

Ms. Taylor claims that information from six out of thirteen deposition transcripts, at
issue, were used at the trial. While the remaining seven depositions were not used at trial, Ms.

Taylor argues that at the time the depositions occurred, she deemed the testimony necessary to
flesh out her claims at trial (Doc. 308).

The Court finds that Ms. Taylor's depositions were necessary for preparation of trial at

the time they were taken. The fact that only five out of thirteen witnesses testified or that only
excerpts from two of the depositions were admitted into evidence is not fatal to Ms. Taylor's

claim. Thus, the Court will allow $23,635.01 in costs for deposition transcripts.

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c.

Witness Fees

Ms. Taylor seeks $650 in costs incurred in serving subpoenas on various witnesses who

were subpoenaed for the first trial setting, which was postponed at Defendants' request, as well
as the second trial setting (Doc. 308). Defendants argue that these costs are not recoverable
because Ms. Taylor can prove only that she served trial subpoenas on two witnesses—Ms.
Lilenfeld and Ms. Tiangco and a deposition subpoena for Ms. Tiangco for the operative trial

dates (Doc. 300). Defendants have submitted copies of the subpoenas for the two witnesses
(Doc. 300-1). Defendants argue that Ms. Taylor has not provided any supporting documentation,
other than a request to issue checks by her counsel, that subpoenas were issued for any other
witnesses (Doc. 300). Because Ms. Taylor has not offered any other supporting documentation
or evidence that the witnesses were vital to her prevailing claim, Defendants request that the

Court deny in full her request to recoup costs for witness fees. Id.

Section 1920 provides that a court may tax "fees and disbursements for printing and
witnesses." 28 U.S.C. § 1920(3). Under § 1821, "[a] witness shall be paid an attendance fee of

$40 per day for each day's attendance." 28 U.S.C. § 1821(b). The $40-per-day allowance applies
to both witnesses subpoenaed to testify at trial and witnesses who are in attendance "before any
person authorized to take his deposition pursuant to any rule or order of a court of the United
States." 28 U.S.C. § 1821(a)(1). A prevailing party is entitled to a $40-per-day attendance fee
for a witness attending a deposition. Scallet, 176 F.R.D. at 527-28. The prevailing party may
also recover costs for fees, mileage, and subsistence of witnesses who appeared, and those who,
believed to be necessary, appeared but did not testify. Int'l WoodProcessors v. Power Dry, Inc.,
598 F.Supp. 299, 304-45 (D.S.C.1984), affd, 792 F.2d 416 (4th Cir. 1986).

21

A careful review of the invoices attached to Bill of Costs reveals documentation verifying

that Ms. Taylor's counsel issued eight checks in the amount of $75 to witnesses and $50 for a
deposition subpoena for one witness totaling $650. (Doc. 294-1). Contrary to Defendants'
argument that Ms. Taylor only shows a request for issuance of checks by her counsel, Ms.
Taylor's documentation also includes check numbers and amounts for the checks. Id.
Further, Ms. Taylor has explained that two sets of witnesses were subpoenaed because
the first trial was postponed at Defendants' request. (Doc. 308). She has provided evidence of

payments to the witnesses by attaching the e-mails with the names of the witnesses requesting
that the checks be issued and a copy of the check numbers with the amounts of the check. (Doc.
294-1). As long as these witnesses where either subpoenaed to testify at trial or were in
attendance "before any person authorized to take his deposition pursuant to any rule or order of a
court of the United States," the fees that Ms. Taylor's counsel paid to them is properly taxable

under sections 1920 and 1821. Accordingly, the Court will allow $650 in costs for witness fees.
d.

Copying Costs

Ms. Taylor seeks $7,786.61 in costs incurred for exemplification and copies of papers
necessarily obtained for use in the case (Doc. 294). Ms. Taylor itemized the copying costs as
follows: print electronic data received in discovery from Defendants ($768.15); trial exhibits

($5,973.71); and internal copying costs for initial set of Ms. Taylor's trial exhibits and additional
set of Defendant's exhibits for use by counsel and which were used by witnesses at the trial
($1,044.75) (Docs. 294; 308).

Under 28 U.S.C. § 1920(4), a court may tax fees for exemplification and the costs of
making copies of any materials where the copies are necessarily obtained for use in the case.

The statutory term "materials" is interpreted broadly to include papers, graphs, charts,

22

photographs and other like materials used as exhibits. See Water's Edge, 135 F.R.D. at 137.
"Photocopy charges are properly taxable only to the extent that the copies were used as court
exhibits or were furnished to the court or opposing counsel." Id; Ford, 708 F. Supp. 2d at 562.

The party seeking recovery ofphotocopying costs bears the burden ofdemonstrating the reasons
for each copying charge. Ford, 708 F. Supp. 2d at 562; see Synergistic Int'l, LLC v. Korman,
2007 WL 517676, at *5 (E.D. Va. Feb. 8,2007).

Here, Ms. Taylor maintains that all of the exhibits she proffered at trial related to her
claims before the Court, and that the vast majority of the exhibits marked by the parties were

offered at trial. (Doc. 308). Attached to her Bill of Costs are invoices documenting the amount

spent on copies (Doc. 294-1). The Court finds thatthe reproduction of printelectronic data, trial
exhibits, and internal copies of trial exhibits, including color copies, were "necessarily obtained
for use in the case." 28 U.S.C. § 1920(4). Accordingly, the Court awards $7,786.61 in copying
costs.

The Court therefore allows Ms. Taylor a taxable cost award in the amount of $36,160.12.
4.

Non-Taxable Costs

Ms. Taylor seeks non-taxable costs in the amount of $86,314.61. Her request may be
broken down as follows:

Table 5: Ms. Taylor's Request for Non-Taxable Costs
Non-taxable Costs

Purpose

Expert Witness Fees and Services:
iDiscovery Solutions - Julian Ackert
Economic & Accounting Expert - William Foote
Board-certified Psychiatrist - Ryan Shugarman
Deposition of Rebuttal Expert - Dr. Gold
Deposition of Rebuttal Expert - Kristin K. Kucsma

$28,762.50
$16,709.00
$19,300.00
$ 2,000.00
$

975.00

TOTAL
Miscellaneous Services:

$ 67,746.50

Copying

$ 9,440.50

Facsimile

$

23

22.00

$

Federal Express
Local Travel & Parking
Messenger Service
Postage

334.96

$ 1,183.59
$ 2,195.03
$
$
$

Private Process Server Fees

Telephone Expenses
Lexis/Accurint/Legal Research

68.67
360.00
17.35

$ 2,923.51

Videographers Services for Depositions of Jennifer Taylor, Ronald
$ 2,022.50

Krall, Jason Callaway
TOTAL

$ 18.568.11

TOTAL Non-Taxable Costs Requested

$ 86,314.61

(Doc. 296-2).

Non-taxable costs and expenses necessarily incurred in connection with a case are

compensable under 42 U.S.C. § 1988. Approximately two-thirds of the non-taxable costs Ms.
Taylor seeks are attributable to the fees and services of expert witnesses. (Doc. No. 296).
Defendants argue that the non-taxable costs sought by Ms. Taylor are factually
unsupported, largely unrelated to her prevailing claim, and thus, not recoverable. Defendants

suggest that the Court award Ms. Taylor no more than $38,984.00 of the $86,314.61 she seeks in
non-taxable costs (Doc. 303).
a.

Expert Witness Fees

Ms. Taylor seeks $67,746.50 in nontaxable costs for expert fees. Under 48 U.S.C. §
1988(c), a court, in its discretion, may include expert fees as part of the attorney's fee. The Court

finds that Ms. Taylor has provided documentation to verify $67,246.50 out of $67,746.50 for

expert witness fees and services that she seeks to recover. Ms. Taylor has provided satisfactory
documentation for the fees requested for the Economic & Accounting Expert William Foote,
Board-certified Psychiatrist Ryan Shugarman, and Professor Kucsma, in the amounts of

$16,709.00, $19,300.00 and $975, respectively (Docs. 296-23; 296-24). Ms. Taylor seeks costs
in the amount of $2,000.00 for Dr. Gold's expert witness fees, but only provides documentation

24

of a copy of a check in the amount of $1,500.00. Therefore, the Court reduces Ms. Taylor's
request from $67,246.50 outof $67,746.50
b.

Videographer Fees

Ms. Taylor seeks $2,022.50 in costs relating to videographer services for the depositions
in this case. Fees for videography of a deposition when they are "necessarily obtained for use in

the case." Cherry, 186 F.3d at 449 (quoting 28 U.S.C. § 1920(2)). Ms. Taylor asserts that the

video depositions of Ron Krall and Jason Callaway were necessary to demonstrate their lack of
credibility as it relates to Ms. Taylor's retaliation claim and their allegations that Ms. Taylor had
performance issues (Doc. 310). The Court agrees. Thus, the Court awards $2,022.50 in costs for
videographer fees.
c.

Fees for Miscellaneous Services

Ms. Taylor seeks $16,545.61 in costs for miscellaneous services, including costs

associated with copies, facsimile, postage, Federal Express, messenger service, local travel and
parking, telephone usage and legal research. All of these expenses are recoverable, and the Court
finds that Ms. Taylor's summary of non-taxable costs fall well within the allowable items. See
Daly, 790 F.2d at 1083; Trimper, 58 F.3d at 75; Lux, 868 F. Supp. 2d at 535. Thus, the Court
awards Ms. Taylor $16,545.61 for costs associated with miscellaneous services.
5.

Award of Costs

The Court awards Ms. Taylor $36,160.12 in taxable costs. The Court reduces the non
taxable costs sought by Ms. Taylor from $86,314.61 to $85,814.61 because Ms. Taylor seeks
$2,000 in fees for the deposition of Dr. Gold, but only submits a copy of a check in the amount
of $1,500 for payment.
The Court will now reduce the cost award by 50 percent for the same reason it reduced

25

Ms. Taylor's attorneys' fees award—to reflect Ms. Taylor's limited success in the action. Thus,
the Court awards Ms. Taylor $18,080.06 ($36,160.12 x 50%) in taxable costs and $42,907.30
($85,769.61 x 50%).

In sum, the Court finds that Ms. Taylor may recover a total of $606,299.98 in attorneys'
fees and costs:

Table 6: Total Award of Fees and Costs
$ 559,572.00
18,080.06

Attorneys' Fees
Taxable Costs

42.907.30

Non-Taxable Costs

$ 620,559.36

TOTAL

IV.

CONCLUSION

For the above reasons, the Court grants in part and denies in part Plaintiffs Petition for

Attorneys' Fees and Costs (Doc. 295). First, the Court holds that Ms. Taylor is entitled to
attorneys' fees in the amount of $559,572.00, which reflects a careful consideration of the
Johnson/Barber factors and the standard set forth in Hensley v. Eckerhart, 461 U.S. 424 (1983).

Second, the Court holds that Ms. Taylor is entitled to $18,080.06 in taxable costs and $42,907.30
in non-taxable costs as these expenditures were necessary and reasonable.

Accordingly, IT IS HEREBY ORDERED THAT Plaintiff Jennifer Taylor's Petition for
Attorneys' Fees and Costs (Doc. 295) is GRANTED in PART and DENIED in PART;
IT IS FURTHER ORDERED that pursuant to Federal Rule of Civil Procedure 58,

judgment is entered in favor of Plaintiff Jennifer Taylor and against Defendant Republic
Services, Inc. for attorneys' fees and costs in the amounts set forth below:

(a)

Attorneys' fees in the amount of $559,572.00;

(b)

Taxable costs in the amount of $18,080.06; and

26

(c)

Non-taxable costs in the amount of $42,907.30.

IT IS SO ORDERED.

ENTERED this 29th day ofJanuary, 2014.
Alexandria, Virginia
1/29/2014

/s/
Gerald Bruce Lee

United States District Judge

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