Covington v. McNeese State Univ.

• Decision Date: 05 September 2012
• Docket Number: No. 11–1077.,11–1077.
• Citation: 98 So.3d 414
• Parties: Collette Josey COVINGTON and Jade Covington v. McNEESE STATE UNIVERSITY and the Board of Supervisors for the University of Louisiana System.
• Court: Court of Appeal of Louisiana — District of US

98 So.3d 414

Collette Josey COVINGTON and Jade Covington

v.McNEESE STATE UNIVERSITY and the Board of Supervisors for the University of Louisiana System.

No. 11–1077.

Court of Appeal of Louisiana, Third Circuit.

Sept. 5, 2012.

James D. “Buddy” Caldwell, Attorney General, J. Michael Veron, J. Rock Palermo, Alonzo P. Wilson, Special Assistants Attorney General, Veron, Bice, Palermo & Wilson, LLC, Lake Charles, LA, for Defendants/Appellants, McNeese State University and the Board of Supervisors for the University of Louisiana System.

Seth Hopkins, Houston, TX, James Hopkins, Sulphur, LA, Lee A. Archer, Lake Charles, LA, for Plaintiffs/Appellees, Collette Josey Covington and Jade Covington.

Neil Hahn, Director of Litigation Systems Advocacy, Lafayette, LA, for Amicus Curiae, The Advocacy Center.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MARC T. AMY, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.

COOKS, Judge.

[3 Cir. 1]This appeal arises from the trial court's judgment rendering an award for attorney fees and costs to the prevailing attorneys in an action under the Americans with Disabilities Act (ADA) and the comparable laws of Louisiana.

FACTS AND PROCEDURAL HISTORY

The facts of this case which served as the genesis of the present motion for attorney fees were previously set out by this court in Covington v. McNeese State Univ., 08–505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667,writ denied,09–69 (La.3/6/09), 3 So.3d 491, as follows:

On January 31, 2001, plaintiff, Collette Covington (hereinafter “Covington”), was a wheelchair-bound student at McNeese State University (hereinafter “McNeese”) with a history of a seizure disorder. On that date, she attended class on campus in Farrar Hall. Covington then proceeded to the Holbrook Student Union (hereinafter “the Old Ranch”). There she was to meet at the designated location for her transportation provided by the Louisiana Vocational Rehabilitation Service.

While waiting, Covington needed to use the restroom and proceeded to go into the Old Ranch. The doorway to the restroom that Covington attempted to use, at its smallest point, measured 29 5/8 inches in width, while the standards for ADA compliance is 32 inches. Covington alleged that while she was unable to enter into the restroom, she suffered the humiliation of urinating on herself while unsuccessfully trying to transport from her wheelchair through the narrow, non-complaint restroom stall door. Covington alleged that she then was injured while trying to gain sufficient leverage to open the door to exit the restroom.

After lengthy discovery, it was admitted by McNeese that not a single women's restroom in the Old Ranch is ADA compliant. Further, McNeese admitted that it did not have a transition plan in writing as required by the ADA.

Covington filed suit against McNeese alleging violations of Title II of the Americans with Disabilities Act (ADA), and the comparable Louisiana laws specifically prohibiting discrimination against the handicapped by educational institutions. She further alleged in her petition that she was injured while trying to use and exit a non-compliant restroom on the McNeese campus. She asserted the [3 Cir. 2]non-compliant restroom violated both the provisions of Title II of the ADA and La.R.S. 46:2254 which mandates “[A]n educational institution shall not: (1) Discriminate in any manner in the full utilization of the institution ...” On a motion for summary judgment in 2007, the district court found Covington was entitled to a judgment as a matter of law on the following issues: (1) McNeese was not immune from suit under U.S. Const. amend. XI; (2) Covington was disabled as defined by the ADA at the time of the incident giving rise to the lawsuit; and (3) McNeese discriminated against her based on her disability. Despite representations to the contrary, McNeese has judicially admitted that Plaintiff's actions “have and will result in substantial changes both at the facilities at McNeese and McNeese's policies for the disabled.” The parties stipulated in the injunction signed in this matter as follows:

The parties stipulate that there has been an alteration in the legal relationship of the parties, thus entitling that Covington is the prevailing party under the ADA with standing to seek attorney's fees in this suit. During the pendency of this suit Covington filed a grievance with the U.S. Department of Justice. And, as a result, the defendants are in the process of negotiating a settlement under which the State of Louisiana and defendants will expend a substantial sum of money to bring the McNeese campus into compliance with the ADA for the benefit of Covington and other disabled students. The parties stipulate that Covington's actions have and will result in substantial changes both to the facilities at McNeese and McNeese's policies for the disabled.

On appeal, we affirmed the decision of the district court, stating we could not “fathom that McNeese felt no need, regardless of whether it was required by law, to upgrade a single women's restroom into ADA compliance in a building that houses, inter alia, the two main student cafeterias on campus, offices for student government and activities, and a state-of-the-art computer laboratory.” Id. at 687. We also noted McNeese's refusal to comply with the federal mandate to provide handicapped accessibility was “reminiscent of the intolerance of the past.” Id. at 687. As Judge John D. Saunders of this court astutely wrote and cautioned:

[3 Cir. 3]We had hoped that the days where a court has to step in to ensure that people were treated equally under the laws of this country were gone. Yet, still, McNeese is emboldened enough to bring such a case to an appellate court where a published, written opinion will forever memorialize its discrimination against this country's disabled citizens. It is hoped that McNeese will reassess its attitude toward its disabled students. It is also hoped that McNeese will prepare and publish a transition plan as required by the ADA.

Id. at 687–88.

This court also noted that in the previous appeal, Tim Delaney, Director of Services for Students with Disabilities, who was assigned by McNeese to deal with disabled students, candidly admitted he “regarded Covington ‘as having such impairment,’ ” but McNeese persisted in its discriminatory behavior. This prompted our court to state in that opinion “[h]ad Covington brought an action for frivolous appeal on this particular issue, it would seem that this court would have granted such a request.” Id. at 678–79. McNeese's request for rehearing with this court, and its writ application to the Louisiana Supreme Court, were denied.

McNeese eventually settled with Covington, but took another 395 days from the time it exhausted all efforts to overturn the summary judgment to formulate and disseminate an accommodation plan for the disabled on its campus. McNeese's response was slow in coming, even when faced with a United States Department of Justice investigation which focused on Covington's complaint and the multitude of willful violations of the ADA across its campus. Ultimately, McNeese's final plan addressed some 15,000 ADA violations on its campus.

The motion for attorney fees, which is the subject of the present appeal, was filed by six attorneys who worked on Covington's behalf. Covington's lead counsel was Seth Hopkins. He began his involvement with the case shortly after graduating from law school in 1999. For the next ten years, young Hopkins worked on Covington's case, without any compensation. Hopkins testified, to support himself while pursuing Covington's case, he accepted employment as a [3 Cir. 4]staff attorney at a Houston, Texas law firm. He testified his continued involvement with Covington's case kept him from accepting more lucrative work. Meanwhile, McNeese's attorneys, more than twelve in all, received compensation all along the way for their services as the case dragged along.

The trial court noted Hopkins “took a personal interest in the case” and “passionately pursued the interests of his clients, and immersed himself in ADA law in order to provide the most effective representation he possibly could.” He relentlessly pursued the Covington case and ultimately prevailed. In the words of Hopkins:

As the months turned to years, I saw Collette's despair grow, and I was moved by her powerlessness and her passion about getting a degree in early childhood education. I also realized that McNeese was an important part of the community, was the largest employer in the area, had an enthusiastic alumni and supporters, lots of influence and the almost unlimited legal financial resources of the government.

I was ... forced to face some of the Attorney General's most experienced attorneys 30 years my senior, to date, 12 attorneys on the other side.

Unlike those who argued in favor of McNeese's discrimination, plaintiff's counsel have gone unpaid for ten years.

Hopkins and the other five plaintiff's attorneys submitted timesheets documenting the time spent on the Covington litigation. The attorneys also presented affidavits from four expert attorneys, including three local attorneys who previously handled ADA cases in the Lake Charles area and one national expert. These experts indicated it was reasonable to expect lead counsel to expend 6,500 hours in advancing Covington's claim, but Seth Hopkins points out he only requested 83% (5,489.5 hours) of that amount. Hopkins voluntarily reduced his hours covering ten years of dedicated representation to allow for discrepancies in time records which made it appear he had billed for more than twenty-four hours in a day. The claimed hours also do not include numerous hours of telephone conversations with opposing counsel which were too burdensome to constantly [3 Cir. 5]keep track nor the six days spent at the fee application hearing. Additionally, Covington's attorneys filed nearly...