Barrow v. City of Cleveland, 050719 FED6, 18-3665

Docket Nº:18-3665
Party Name:JEROME BARROW, Plaintiff-Appellant, v. CITY OF CLEVELAND, et al., Defendants-Appellees.
Judge Panel:BEFORE: KETHLEDGE, WHITE, and BUSH, Circuit Judges. JOHN K. BUSH, Circuit Judge, dissenting.
Case Date:May 07, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

JEROME BARROW, Plaintiff-Appellant,


CITY OF CLEVELAND, et al., Defendants-Appellees.

No. 18-3665

United States Court of Appeals, Sixth Circuit

May 7, 2019





Plaintiff Jerome Barrow, a former lieutenant with the Cleveland Division of Police, brought this action against the City of Cleveland and several of his former supervisors[1] alleging that they retaliated against him for filing a charge of racial discrimination with the Equal Employment Opportunity Commission (EEOC). After a jury returned a verdict in Barrow's favor, the district court denied the City's motion for judgment as a matter of law, granted Barrow's motion for attorneys' fees, and entered judgment for Barrow. The City now asks us to set aside the jury's verdict, grant it judgment as matter of law, and grant its motion for fees. Finding no error, we affirm.



Factual History

Jerome Barrow, an African-American male, began his long career with the City of Cleveland Division of Police in 1979. By all accounts, Barrow was a good officer; he received high marks on his annual performance evaluations, was certified as an instructor in 1985, and rose through the ranks. In 1993, he was promoted after passing the promotional exam for sergeant. Barrow achieved the rank of lieutenant in 2005, and later joined the vice unit, where he spent most of the rest of his career. Barrow received multiple commendations from his supervisors over the years and he was chosen to represent the City of Cleveland in the security detail for President Obama's 2009 and 2013 Inaugurations.

Barrow took the test to become a captain in 2011, but failed to achieve a passing score. Of the officers who took the exam, eight passed and two (including Barrow) failed. Only one of the officers who passed was African-American. After learning of the test results, Barrow filed a charge with the EEOC in February 2012 alleging that the test was racially discriminatory. The EEOC notified the City of Barrow's complaint. The EEOC conducted an investigation and ultimately issued a notice of right to sue.

Following his EEOC charge, Barrow experienced several employment actions that he claims were in retaliation for his EEOC complaint.

First, Barrow alleges that the City retaliated against him by reassigning the 2010 Dodge Charger that had been dedicated to his use as the vice-unit supervisor. According to Barrow, every vice-unit officer has a vehicle assigned to him or her. Barrow's Charger sustained damage in January 2012 when Barrow collided with a "boulder" in the road. (R. 66, PID 1176.) The car was removed from service while it was repaired, and Barrow drove the department's "pool cars," which were available for use by all vice officers. (Id. at PID 1177-78.) When the Charger was put back into service in September 2012, Captain Romoga, Barrow's immediate supervisor, reassigned the vehicle and expressly prohibited Barrow from using it. When he was transferred from the Third District (and thus no longer under the command of Romoga and Stephens), the Charger was assigned to Barrow's successor.

Second, Barrow asserts that he was put on administrative duty in retaliation for his EEOC complaint. On October 31, 2012, then-Deputy Chief Calvin Williams issued an order prohibiting Barrow from having any contact with the public. The order was conveyed to Barrow by Commander Stephens, the commanding officer of the Third District. Although Barrow remained a part of vice squad, he was "removed from any actual duties of the vice unit." (R. 66, PID 1155.) Instead, his work would be "purely administrative." (R. 46-2, PID 695.) Barrow was deeply frustrated by this reassignment; he explained at trial that for almost all of his career, he worked the shift that ran from 7:00 p.m. to 3:00 a.m., what he called "high crime hours." (R. 65, PID 1085.) These were the standard hours for the vice squad, and Barrow considered himself "a vice guy." (Id. at 1085-86.) Barrow was finally taken off administrative duty and returned to street duty upon his transfer from the Third District to the Fourth District on April 1, 2013.

Third, Barrow contends that he was barred from seeking certain overtime opportunities after his EEOC complaint. Specifically, he asserts that as a result of Williams's no-contact-with-the-public order, he was effectively prohibited from working security details during Cleveland Browns football games. According to Barrow, these security details required four officers, but often only two or three officers volunteered. Barrow alleges that he was unable to fill the empty spots in that detail because he was prohibited from having any contact with the public.

Barrow filed a second charge with the EEOC on December 4, 2012, alleging retaliation for his filing of the first EEOC charge. The EEOC issued a right-to-sue notice regarding the second charge on January 13, 2016. Barrow retired from the Cleveland Division of Police on July 26, 2016.


Procedural History

On April 18, 2016, Barrow filed his complaint, naming as defendants the City of Cleveland, Patrick Stephens, Michael McGrath, and Martin Flask.2 Barrow's claims included: (1) racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983; (2) retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq; (3) discrimination under Title VII; (4) First Amendment retaliation in violation of § 1983; (5) retaliation in violation of Ohio Revised Code § 4112.02; and (6) "pendent state law claims." Barrow also sought punitive damages. Neither party filed dispositive motions, and the case proceeded to trial.

The morning of trial, the district court dismissed Barrow's § 1983 claims and Title VII discrimination claim on the ground that all alleged acts of discrimination took place outside the two-year statute of limitations, and therefore the claims were time-barred. Only the Title VII and state-law retaliation claims remained for trial.

At the close of Barrow's case-in-chief, the City moved for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. The district court granted the Rule 50 motion as to the three individual defendants, ruling that they were protected by qualified immunity. The district court noted that no evidence had been presented that the individual defendants personally engaged in any form of retaliation or that they were actually aware that Barrow had filed the first EEOC complaint. The district court took the motion under advisement as to the City.

After the defense presented its case, the City renewed its motion for judgment as a matter of law. The district court reserved ruling on the motion and submitted the case to the jury. The jury returned a verdict in Barrow's favor and awarded him $55, 900 in compensatory damages.

Barrow then filed a motion for attorneys' fees and costs. Barrow sought only the lodestar amount for his counsel's work: the reasonable hours worked multiplied by a reasonable hourly rate. In total, Barrow requested $107, 569.53 in attorneys' fees and $4, 266.15 in costs.

Defendants Stephens, Flask, and McGrath also filed a motion for attorneys' fees. Defendants argued that because the district court granted the Rule 50(a) motion at the close of Barrow's case-in-chief, the individual defendants were prevailing parties in the action and entitled to attorneys' fees. According to the individual defendants, they incurred fees and costs "investigating and defending, and eventually being forced to try a case and defend multiple claims against multiple parties that had no evidentiary support whatsoever." (R. 72, PID 1528.)

The magistrate judge issued a report and recommendation that Barrow's motion for fees be granted and Defendants' motion be denied, which the district court adopted. The district court noted that Barrow's counsel billed for only 139 hours over the course of the three-year case, while counsel for Defendants billed for 533 hours of attorney time. Because it appeared Plaintiff's counsel was more efficient, the district court credited his business judgment in billing his time. The district court also found, over Defendants' objection, that the individual Defendants were not entitled to attorneys' fees and costs because the allegedly frivolous claims were so intertwined with the successful claim as to preclude an award.

The City also filed a written motion to amend the judgment under Rule 50(b), or in the alternative, for a new trial under Rule 59(e). The City argued that: (1) Barrow failed to allege that he was put on administrative duty in his second EEOC charge, and therefore the claim was not administratively exhausted; (2) Barrow failed to present evidence that any decision-maker had knowledge of the first EEOC charge prior to the alleged acts of retaliation; (3) Barrow failed to prove that any of the alleged retaliatory acts were materially adverse; (4) Barrow failed to prove a causal connection between the filing of the first EEOC charge and the adverse acts; and (5) Barrow failed to sufficiently prove his damages. The City also argued that the jury was prejudiced by Barrow's testimony during his case-in-chief because he made "widespread allegations which had no evidentiary support and were not included in the EEOC [c]harge, making them irrelevant to any pending claim." (R. 75, PID 1618-19.)

The district court denied the City's motion, explaining: Competent evidence was presented at trial by which the Jury reasonably found that a City employee with managerial...

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