United States District Court, D. Colorado
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 ...