Christos v. Halker Consulting, LLC

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's Motion for Attorney's Fees [Docket No. 132] and Halker Consulting LLC's Motion to Review Taxation of Costs [Docket No. 136].

         I. BACKGROUND

         This lawsuit arises out of plaintiff Jennifer Christos' termination from Halker Consulting, LLC in May 2015. Plaintiff filed her complaint on July 19, 2016 asserting three claims against Halker Consulting: (1) sex and pregnancy discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act of 1978; (2) retaliation under Title VII; and (3) interference with her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Docket No. 1 at 6-9. Plaintiff also asserted a Colorado state-law claim for intentional interference with contract against Halker Consulting's Chief Operations Officer, Travis Hutchinson, and owner, Matthew Halker. Id. at 9. On March 26, 2018, the Court granted defendants' motion for summary judgment in part and dismissed plaintiff's discrimination, retaliation, and state-law contract claims. See Docket No. 75. Plaintiff's remaining claim for FMLA interference against Halker Consulting proceeded to trial on April 23, 2018. See Docket No. 102. On April 27, 2018, the jury returned a verdict in favor of plaintiff on her FMLA interference claim and awarded $1, 296 in compensatory damages. Docket No. 112. On November 1, 2018, the Court awarded plaintiff the additional amount of $1, 552.58, consisting of $128.29 in prejudgment interest and $1, 424.29 in liquidated damages, as well as her costs under Fed.R.Civ.P. 54(d). Docket No. 129 at 5.

         On November 15, 2018, plaintiff moved for an award of attorney's fees pursuant to 29 U.S.C. § 2617(a)(3) and Fed.R.Civ.P. 54(d). Docket No. 132. On November 29, 2018, the Clerk of Court taxed costs against Halker Consulting in the amount of $7, 071.69. Docket No. 134. Defendant filed a motion seeking review of the costs taxed on December 6, 2018. Docket No. 136.

         II. MOTION FOR ATTORNEY'S FEES

         Plaintiff moves, pursuant to 29 U.S.C. § 2617(a)(3) and Fed.R.Civ.P. 54(d), for an award of $183, 498.75 in attorney's fees and $252.43 in litigation expenses. See Docket No. 132 at 1, 15.^[1] Section 2617(a)(3) provides that the “court in [an FMLA] action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.”

         Defendant does not dispute that the jury's verdict in favor of plaintiff on her FMLA interference claim makes her the prevailing party for purposes of an attorney's fee award. See Docket No. 135 at 1. Defendant argues, however, that the Court should award plaintiff no or few fees under the factors set forth in Justice O'Connor's concurrence in Farrar v. Hobby, 506 U.S. 103 (1992). Docket No. 135 at 1-8. Alternatively, defendant contends that, even if plaintiff is entitled to a calculation of her lodestar amount, such sum should be reduced significantly to account for (a) hours expended before plaintiff's receipt of her right to sue letter on April 28, 2016; (b) hours expended after defendant's $50, 000 settlement offer on April 5, 2018; (c) hours expended on plaintiff's unsuccessful Title VII and interference with contract claims; and (d) plaintiff's limited success on her FMLA interference claim. See Id. at 8-14.

         A. Farrar Factors ^[2]

         While the Court's discretion to deny attorney's fees to a prevailing party is narrow, Phelps v. Hamilton, 120 F.3d 1126, 1131 (10th Cir. 1997), the Court may award no or few fees if it finds that the party's victory was “purely technical or de minimis.” Farrar, 506 U.S. at 117-18 (O'Connor, J., concurring).^[3] In determining whether this standard is satisfied, the Court considers three factors (the “Farrar factors”): (1) the “degree of success obtained” by the plaintiff; (2) “the extent to which the plaintiff[] succeeded on [her] theory of liability”; and (3) the “public purpose served by the plaintiff['s] success.” Zinna v. Congrove, 680 F.3d 1236, 1239-40 (10th Cir. 2012) (citing Farrar, 506 U.S. at 116-20 (O'Connor, J., concurring)). The Court “must consider and weigh all three factors, and no factor is dispositive.” Id. at 1240.

         1. Amount Recovered Versus Amount Sought

         The first Farrar factor concerns the “difference between the judgment recovered and the recovery sought.” Zinna, 680 F.3d at 1240. This is the “most critical” factor in determining whether a plaintiff's victory is merely technical or de minimis, but it is not determinative. Id.

         During closing argument in this case, plaintiff asked the jury to award her $105, 083 in compensatory damages. While the jury's ultimate award of $1, 296 was merely a fraction of that amount, the difference between the amount awarded and the amount sought is not as stark as in Farrar, where the plaintiff sought $17 million in damages, but received $1. See Farrar, 506 U.S. at 121. Moreover, the jury's finding that defendant had not proved that it acted in good faith and with reasonable grounds for believing that plaintiff's termination did not violate the FMLA, Docket No. 112 at 3, resulted in an additional liquidated damages award of $1, 424.29, which somewhat reduced the gap between the recovery sought and the relief obtained. See Docket No. 129 at 4-5. The first Farrar factor therefore weighs only slightly in defendant's favor. See Zinna, 680 F.3d at 1240 (holding that the first Farrar factor weighed in favor of awarding low or no fees where there was a “substantial gap between the relief [the plaintiff] sought and the damages he received”); Brandau, 168 F.3d at 1182 (holding that the district court appropriately evaluated the reasonableness of a fee award under the Farrar factors in finding that the “difference between the judgment recovered and the recovery sought was significantly distinct from the corresponding difference in Farrar” where the plaintiff “sought only back pay for twenty-one months and $50, 000 in non-economic damages[, ] while Mr. Farrar sought damages of $17 million”); Stoedter v. Gates, 320 F.Supp.3d 1265, 1274 (D. Utah 2018) (“While Plaintiff's nominal damages are a limited recovery compared to what he sought, such discrepancy is substantially less than the discrepancy in Farrar . . . .”); see also Millea v. Metro-North R.R. Co., 658 F.3d 154, 168 (2d Cir. 2011) (“FMLA claims are often small-ticket items, and small damages awards should be expected without raising the inference that the victory was technical or de minimis.”).

         2. Significance of the Legal Issue

         The second Farrar factor “goes beyond the actual relief awarded to examine the extent to which the [plaintiff] succeeded on [her] theory of liability.” Zinna, 680 F.3d at 1240 (internal quotation marks omitted). Defendant argues that this factor supports awarding low or no attorney's fees in this case because plaintiff did not vindicate important constitutional rights or reveal systemic discrimination against a protected class, she did not receive non-pecuniary relief, and the only claim on which she prevailed “was clearly not her most important theory of liability.” Docket No. 135 at 4. Defendant's first argument is irrelevant to the Court's analysis of the second factor, which “focuses on the extent of success as opposed to the importance of the legal issue.” Barber, 254 F.3d at 1231. Likewise, defendant's second argument regarding plaintiff's failure to obtain non-pecuniary relief is better addressed under the first factor, which the Court has already determined weighs slightly in defendant's favor.

         As to the extent of plaintiff's success, the jury determined that defendant “took an adverse action” related to the “exercise or attempted exercise of plaintiff's FMLA rights” that “interfered with [her] right to take FMLA leave.” Docket No. 112 at 2. The jury further concluded that defendant had not proved “that it acted in good faith and with reasonable grounds for believing that plaintiff's termination did not violate the FMLA.” Id. at 3. Plaintiff therefore prevailed on the only two issues submitted to the jury for consideration. The fact that some of plaintiff's claims were dismissed on summary judgment does not alter the conclusion that the jury's verdict amounted to a substantial vindication of plaintiff's rights. In other words, regardless of whether FMLA interference was plaintiff's “most important theory of liability” at all stages of the litigation, Docket No. 135 at 4 (emphasis added), it was a “significant issue . . . which achieve[d] some of the benefit [plaintiff] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (internal quotation marks omitted); see also Zinna, 680 F.3d at 1238, 1240 (holding that the plaintiff prevailed on a significant issue in litigation even though other claims and defendants were dismissed prior to trial); Layton v. Bd. of Cty. Comm'rs of Oklahoma County, 2014 WL 652311, at *3 (W.D. Okla. Feb. 19, 2014) (holding that the second Farrar factor weighed in favor of a fee award where the plaintiff “prevailed on the only issue submitted to the jury”). Accordingly, the second Farrar factor does not support a finding that plaintiff's success was merely technical or de minimis.

         3. Public Purpose of the Litigation

         Under the final Farrar factor, the Court “considers whether the plaintiff's claim accomplished some public goal.” Zinna, 680 F.3d at 1240 (internal quotation marks omitted). The Tenth Circuit has construed this factor broadly. See Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1232 (10th Cir. 2001). Accordingly, “a public goal is accomplished if the plaintiff's victory encourages attorneys to represent civil rights litigants, affirms an important right, puts the defendant on notice that it needs to improve, and/or provokes a change in the defendant's conduct.” Id.

         The Court finds that the third factor weighs in plaintiff's favor. The jury's finding that defendant interfered with plaintiff's rights under the FMLA affirmed an important statutory right of employees, see Millea, 658 F.3d at 167 (noting Congress's “policy determination that FMLA claims serve an important public purpose disproportionate to their cash value, ” as evidenced by the FMLA's fee-shifting provision); see also Koopman v. Water Dist. No. 1 of Johnson Cty., Kan., 41 F.3d 1417, 1421 (10th Cir. 1994) (holding that case was distinguishable from Farrar because it “had significant implications in establishing basic rights for public employees”), and highlighted the subtle ways in which an employer may penalize an employee for exercising his or her right to FMLA leave. An award of attorney's fees in this case will also encourage attorneys to take on FMLA cases in the future. This is particularly important in the context of FMLA litigation, where the comparatively low damages awards, see Millea, 658 F.3d at 168, otherwise serve as a disincentive for attorneys to assist employees in vindicating their rights under the statute.

         Defendant argues that plaintiff's lawsuit did not serve a public purpose because plaintiff was not seeking to vindicate a constitutional right and there is no evidence that the case will “deter future lawless conduct.” Docket No. 135 at 4, 6.^[4] However, defendant does not point to any authority distinguishing between constitutional and statutory claims for purposes of the Farrar analysis. And defendant's suggestion that a plaintiff must show discriminatory animus or “systemic interference with FMLA leave” in order to obtain attorney's fees, see Docket No. 135 at 6 (citing, in support of the denial of fees, the fact that defendant “decided to lay off employees because it was suffering financially” and plaintiff's failure to show that “factors apart from plaintiff's low score played a role in her termination”), would impose an undue burden on plaintiffs asserting individual claims for FMLA interference, which, by their nature, do not require a showing of discriminatory intent. See Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1180 (10th Cir. 2006) (stating that “a denial, interference, or restraint of FMLA rights is a violation regardless of the employer's intent”). Moreover, to the extent defendant suggests that the litigation will not have any impact on its future conduct, plaintiff correctly points out that the interest in “[d]eterring future lawless conduct is not limited to Defendant itself.” Docket No. 138 at 4; see also, e.g., Smith v. T.W. Clyde, O.D., P.C., No. 13-cv-01672-WJM-KLM, 2015 WL 7774199, at *6 (D. Colo. Dec. 3, 2015) (finding that, even if “the changes made to the management of Defendant's business would have happened anyway and were not a result of” the lawsuit, the third factor weighed in favor of a substantial fee award because plaintiff's success would deter “other business owners and employers from engaging in similar discriminatory conduct”). For the reasons discussed above, plaintiff's FMLA interference claim served to “vindicate[] important rights and deter[] future lawsuit conduct as opposed to merely occupying the time and energy of counsel, court, and client.” Zinna, 680 F.3d at 1241 (internal quotation marks omitted). Accordingly, the third Farrar factor supports an award of reasonable attorney's fees.

         Because two out of three of the Farrar factors weigh in favor of a conclusion that plaintiff's victory was not merely technical or de minimis and collectively outweigh the other factor, the Court holds that plaintiff is entitled to reasonable attorney's fees related to the litigation of her FMLA interference claim. See Zinna, 680 F.3d at 1242 (holding that the plaintiff was entitled to an award of reasonable attorney's fees where the second and third Farrar factors supported a conclusion that the plaintiff's victory was “not merely technical”).

         B. Reduction of ...