Opinion
No. C 97-221.
September 27, 2001.
ORDER
Pending before the Court is the plaintiff's claim for equitable relief (front pay), attorneys' fees, and pre-judgment interest. The Court has now reviewed the extensive filings by the parties in regard to this issue and enters the following Order.
A. Front pay.
Under Title VII and the Iowa Civil Rights Act, the Court has discretion to award equitable remedies, including reinstatement or front pay. In deciding whether to award front pay, the Court should consider all aspects of the case, including the efforts of the plaintiff to mitigate damages. Excel Corporation v. Bosley, 165 F.3d 635 (8th Cir. 1999).
The Court is not entirely convinced that this is a case in which reinstatement would not be an appropriate remedy. Even Younkers' employees testified to Ms. McGrane's excellent skills as a men's clothing salesperson. In addition, there does not appear to be any animus between Ms. McGrane and the other employees in the men's clothing department or the current management at the Lindale Mall Younkers store. Having said that, however, both sides are in agreement that reinstatement is not an appropriate remedy, and if there is to be any equitable relief it should be by way of front pay. The only dispute is the amount of front pay, if any, to be awarded.
Ms. McGrane is currently earning approximately $12,500 per year less than her male counterparts who are still employed at Younkers. In reviewing the evidence and having considered a number of cases dealing with the appropriate amount of front pay, this Court concludes that three years of front pay is an appropriate remedy in this case. In Ogden v. Wax Works, Inc., 29 F. Supp.2d 1003 (N.D.Iowa 1998), Judge Bennett outlined in detail the various factors the court can look at in determining the length of time front pay should be awarded. Having reviewed all those factors in this case, the Court believes that three years is an appropriate period of front pay. The Court recognizes that Ms. McGrane had the intent to stay with Younkers until retirement age. Ms. McGrane was 58 years old at the time of the entry of the verdict in this case. Three years of front pay should afford her reasonable opportunity to find comparable employment. The Court has also taken into consideration the fact that Younkers itself has been downsizing and reducing the compensation of its sales staff. Consequently, the Court feels that a front pay award of $37,500 (3 years at $12,500 per year) should be adequate to compensate the plaintiff for her lost front pay. Accordingly, the judgment will be amended to include a front pay award of $37,500.
B. Attorneys' Fees
The plaintiff requests an award of attorneys' fees. In actions brought pursuant to Title VII and the Iowa Civil Rights Act, the Court has the discretion to award the prevailing party reasonable costs, including attorneys' fees. In analyzing the amount of the fees to be awarded in this case, the Court relies upon the thorough analysis and compilation of relevant Eighth Circuit authorities contained in Judge Bremer's decision in Madison v. IBP, Inc., 149 F. Supp.2d 730, 806-815 (S.D.Iowa 1999).
The plaintiff's attorneys have filed two applications for allowance of attorneys' fees. The original application was filed February 20, 2001, and included all work through trial to the date the application was filed. The total claim for attorneys' fees and costs in that application was $176,452.07. The hourly rates charged by the attorneys working on the file ranged from a low of $110 per hour for newer associates, to $220 per hour for the senior partner working on the file, attorney Kevin Visser. The two principal attorneys working on the file were Mr. Visser who billed 441.09 hours @ $220 per hour, and Cynthia Sueppel who billed 309 hours @ $125 per hour. The plaintiff filed a supplemental application for attorneys' fees and expenses on August 10, 2001. This included all additional time for post-trial motions, briefing, etc. That application was for a total of $19,337.60. The hourly rates charged by the principal attorneys remains the same.
The defendant has two main complaints with the fee application. The defendant first argues that Mr. Visser's hourly rate of $220 per hour is excessive. The defendant also argues that there should be at least a 20% reduction in the number of hours billed for duplication of efforts and lack of success. The lack of success argument goes principally to the fact that this case included an age discrimination claim which was resolved in favor of Younkers. The Court does not understand the defendant to have any serious dispute with the hourly rates charged by any of the Moyer Bergman attorneys other than Mr. Visser. Those rates are consistent with the hourly rates charged by associates and others working on the file for the defendant.
The hourly rate to used to calculate an attorney's fees must be consistent with the rate generally charged in the market. Denesha v. Farmer's Ins. Exchange, 161 F.3d 491, 501 (8th Cir. 1998). The issue is whether $220 per hour for Mr. Visser is a rate that is consistent with comparable rates in the community. In reviewing all of the materials submitted by the parties, the Court believes Mr. Visser's hourly rate should be reduced to $200 per hour. In making this determination, the Court notes a number of factors. First, the rates being charged by the senior attorney for the defendant in this case, an attorney with comparable or more experience than Mr. Visser, top out at $170 per hour. While the Court recognizes that the rates charged by defense counsel are not dispositive on the issue of a reasonable rate, it is certainly a factor the Court can consider.
The Court also notes that Mr. Visser's rates are the highest charged by any attorney in his firm. In fact, attorney Robert Konchar, an attorney which this Court knows has as much or more experience than Mr. Visser, charges only $175 per hour.
The reason this Court does not reduce the fees to an amount even lower than $200 per hour is because of Mr. Visser's extensive experience in the area of employment discrimination. Mr. Visser has handled a number of major employment discrimination cases, including a very significant case tried by this Court which was ultimately appealed to and affirmed by the Eighth Circuit Court of Appeal. See, Kim v. Nash Finch, 123 F.3d 1046 (8th Cir. 1997). In making this Court's determination, the Court also notes in the case of Madison v. IBP, Inc., Judge Bremer awarded attorney Roxanne Conlin $225 per hour. Given the fact that Ms. Conlin has considerably more experience than Mr. Visser in the area of employment litigation, leads the Court to the conclusion that at least some amount less than that awarded to Ms. Conlin is appropriate in this case.
On the issue of a reduction for any duplication or lack of success, the Court first notes that plaintiff's attorneys have already reduced their fees, to some extent, to reflect any possible duplication and to reduce Ms. Sueppel's hourly rate to $125 per hour. That reduction is in the amount of $11,225. This Court feels, however, that some further reduction is necessitated due to the fact that the plaintiff was asserting two claims which were ultimately unsuccessful. The first was an age claim on which the jury found in favor of the defendant. The second was a mixed discrimination case of gender/age which this Court ultimately decided not to submit to the jury for its consideration. On the other hand, the vast majority of the work performed by the attorneys was necessary as to the claim on which the plaintiff ultimately prevailed. As a consequence, the Court will reduce the total fee award (after reducing Mr. Visser's hourly rate to $200 per hour) by an additional 10%.
The Court also finds that the out-of-pocket expenses claimed by the plaintiff's attorneys, exclusive of those costs awarded under the bill of costs, are reasonable and will be compensated.
In summary, the claim for attorneys' fees on the initial fee application is reduced by $20 per hour for the 441.09 hours worked by attorney Kevin Visser for an initial reduction of $8,821.80. This results in a net claim of $166,865.95 ($175,687.75 — $8,821.80). That amount is then reduced by an additional 10%, for a total allowance of attorneys' fees on the initial application of $150,179.36 ($166,865.95 — $16,686.59). In addition, the Court will allow the reimbursement of costs on the initial fee application of $764.32.
On the supplemental fee application filed August 10, 2001, the Court will first reduce the fees by $697.60. This represents the $20 per hour reduction for Mr. Visser's time of 27.88 hours shown on the itemization of fees totaling $15,433.60. That reduction is 3.6% off the total itemized fees requested. Plaintiff's counsel is requesting an additional allowance of professional fees of $3,869.98 which is not itemized because it has not yet been posted to the plaintiff's attorneys' accounting system. The Court also reduced that amount by 3.6% for a total reduction on the requested allowance of $697.60. The total attorneys' fees allowed on the supplemental application prior to the 10% reduction is therefore $18,640 ($19,337.60 — $697.60). In reducing that amount by 10% results in a net allowance of $16,776 ($18,640 — $1,864). No additional costs are sought on the supplemental application.
In summary, the Court will allow total attorneys' fees of $166,955.36 ($150,179.36 on the first application, plus $16,776 on the supplemental application). In addition, the Court is allowing reimbursement of expenses totaling $764.32. The total allowance of fees and expenses is $167,719.68. The judgment entered in this case shall be amended accordingly.
C. Pre-judgment interest
The final issue is how pre-judgment interest should be handled in this case. The Court has the discretion to award pre-judgment interest in order to make the plaintiff whole. Smith v. World Insurance Company, 38 F.3d 1456, 1467 (8th Cir. 1994). In this case, the court declines to award pre-judgment interest.
The reason the Court makes this decision is for several reasons. First, the award of back pay in this case was extremely generous. In fact, even the plaintiff conceded in its post-trial briefs that the jury had awarded back pay in an amount in excess of that which the evidence justified. Consequently, the Court was required to reduce the back pay award to an amount which the plaintiff felt was supported by the evidence. However, even that amount was at the outer limit of what the evidence would support in this case. So as a consequence, the Court feels that the plaintiff has been very adequately compensated for lost wages. Secondly, the Court has elected to award three years of front pay, without any reduction for a discount factor, which should more than fully compensate the plaintiff for any loss she sustained. Finally, the plaintiff did receive a generous award of emotional distress damages in this case. Consequently, it is the conclusion of this Court that the plaintiff has been fully compensated for her losses and that no pre-judgment interest shall accrue in this case. Interest should accrue on the judgment, as amended, from and after the entry of the judgment at the statutory federal judgment rate.
IT IS THEREFORE ORDERED as follows:
1. The plaintiff shall be awarded front pay in the amount of $37,500.
The judgment shall be amended accordingly.
2. The plaintiff shall be awarded attorneys' fees totaling $166,955.36, plus costs of $764.32, for a total of $167,719.68. The judgment shall be amended accordingly.
3. The plaintiff is denied pre-judgment interest.
4. The judgment, as amended, shall accrue interest from and after the date of entry of the judgment at the statutory federal judgment rate.
Done and Ordered.