Crump v. U.S. Dept. of Navy

• Decision Date: 27 March 2017
• Docket Number: Civil Action No. 2:13cv707
• Citation: 245 F.Supp.3d 692
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Summer CRUMP, Plaintiff, v. UNITED STATES DEPT. OF NAVY, BY AND THROUGH Ray MABUS, Secretary of Dept. of Navy, Defendant.

245 F.Supp.3d 692

Summer CRUMP, Plaintiff,

v.UNITED STATES DEPT. OF NAVY, BY AND THROUGH Ray MABUS, Secretary of Dept. of Navy, Defendant.

Civil Action No. 2:13cv707

United States District Court, E.D. Virginia, Norfolk Division.

Signed March 27, 2017

Ann Katherine Sullivan, Deborah Yeng Collins, Melissa Morris Picco, Sullivan Law Group, P.L.C., Norfolk, VA, David Michael Pearline, Law Office of David Pearline, Virginia Beach, VA, for Plaintiff.

Kent Pendleton Porter, Virginia Lynn Van Valkenburg, United States Attorney Office, Norfolk, VA, D'Ontae D. Sylvertooth, Pro Hac Vice, Department of the Navy Naval Litigation Office/General Lit Team, Washington Navy Yard, DC, for Defendant.

OPINION AND ORDER

Mark S. Davis, UNITED STATES DISTRICT JUDGE

This matter is before the Court on motions filed by Plaintiff, Summer Crump, seeking attorney's fees, ECF No. 340, and seeking supplemental attorney's fees, ECF No. 372. Such motions are filed pursuant to 29 U.S.C. § 794a(b), and are predicated on Plaintiff's success in obtaining a jury verdict in her favor and the Court's subsequent grant of back pay. Defendant, United States Department of Navy ("the Navy"), filed a responsive brief acknowledging that Plaintiff may be eligible as a prevailing party to seek attorney's fees, but arguing that the Court should nevertheless not award her any attorney's fees due to her minimal recovery in the instant case. ECF No. 361. For the reasons discussed below, Plaintiff's motion seeking attorney's fees and motion seeking supplemental attorney's fees are GRANTED, but the amount of such award is less than Plaintiff seeks.

I. Factual and Procedural Background

Plaintiff suffers from bilateral profound sensorineural hearing loss

, and has utilized cochlear implants for approximately fifteen years. Nov. 30, 2016 Mem. Order 2, ECF No. 368 ("Nov. 2016 Order");¹

see also Sept. 8, 2016 Op. and Order 2, ECF No. 337 ("Sept. 2016 Op.") (internal citations omitted). After obtaining such cochlear implants, Plaintiff became a licensed physician assistant. Nov. 2016 Order at 2. With the assistance of her cochlear implants, Plaintiff was generally able to hear and speak without further assistance. Plaintiff was hired by TCoombs & Associates, LLC and TCMP Health Services, LLC (collectively "TCA") to begin providing physician extender services on or about June 3, 2010 at the Navy's Sewells Point Clinic, pursuant to a contract between TCA and the Navy. Id. In providing these services, TCA and the Navy jointly employed the Plaintiff, as this Court previously found, for purposes of determining liability under the Rehabilitation Act of 1973. Id. (citing Sept. 22, 2015 Op. and Order, ECF No. 183 ("Sept. 2015 Op.")).

Plaintiff left her position at Sewells Point Clinic, on unpaid leave under the Family and Medical Leave Act ("FMLA"), to have cochlear implant

revision surgery on or about April 26, 2011, after she began experiencing significant hearing deficits. Id. (citing Sept. 2016 Op. at 4). As of July 2011, Plaintiff's full hearing capabilities had not yet returned. Id. Plaintiff therefore requested an accommodation to be successful in returning to work at Sewells Point Clinic, including reduced noise levels and use of a video relay service (rather than a teletype service) for communication on the telephone. Id. at 3. At the most basic level of description, with a teletype service, also referred to as a TTY, a hearing impaired person calls a communications assistant ("CA") who then calls the recipient, and communications are typed by the hearing impaired person and spoken by the CA. With a video relay service ("VRS"), the communications between the hearing impaired person and interpreter are signed, using American Sign Language ("ASL"), by way of a video monitor, and the hearing impaired person can use her own voice and utilize any residual hearing capacity to hear the voice of the hearing person. Plaintiff sought a VRS, not a TTY. She began seeking such accommodation and return to work in June 2011. Id.

Plaintiff believed that her request for a videophone had been approved by the Navy in August 2011, but also understood she could not return to work until such videophone had been installed. Id. (citing Excerpts Trial Tr. 22–23, ECF No. 334; Excerpts Trial Tr. 300, 308, ECF No. 332; Trial Tr. 7, ECF No. 358; Agreed Ex. 55, 30). But, because of numerous challenges involving technology compatibility and lack of effective communication, installation was not accomplished by October 2011. Id. As explained in the Court's September 8, 2016 Opinion and Order, after Plaintiff communicated with TCA and the Navy between August and October 2011 about her request for accommodation, in October 2011, Plaintiff again submitted her requests for accommodation on a form provided to her by the Navy. Id. at 4 (citing Sept. 2016 Op. at 6–7). The Navy contended that it relayed several accommodation offers to Plaintiff, through TCA, and that on December 16, 2011, TCA relayed one of these offers, involving the Virginia Relay Service that works with TTY phones, to Plaintiff. Id. (citing Navy's Opening Br. 6–7, ECF No. 348). The Navy contended that this was an offer of TTY at the Military Acute Care Department ("MACD") clinic, and that it was a reasonable accommodation. Plaintiff responded by asserting that the December 16, 2011 email from TCA was not a formal accommodation offer because it did not comply with Navy procedures and it did not come from an authorized decision-maker. Id. (citing Pl.'s Resp. Br. 15–16, ECF No. 359). Moreover, Plaintiff contended that she still believed in December 2011 that the Navy had agreed in August 2011 to provide her with a VRS, that the Navy was trying to make such arrangements, that the December 16, 2011 email was not a withdrawal of that August 2011 offer, and that the Navy just had not finalized the provision of the offered VRS. Id. Plaintiff contended that a reasonable juror could conclude that the Navy did not offer TTY until June 15, 2012, when Plaintiff received a May 24, 2012 official letter from an authorized decision-maker offering a TTY, and also offering as an additional/alternative accommodation a specific model of videophone she had earlier requested. Id. at 5. Moreover, Plaintiff contended that even if the December 16, 2011 email was an actual accommodation offer, it was not a reasonable accommodation. Id.

After further communication from December 2011 through July 2012, and with no notification that an agreed-upon videophone was installed and functional, Plaintiff resigned from TCA on July 27, 2012, and communicated her resignation to the Navy on August 9, 2012, formally rejecting the Navy's offer of accommodation. Id. (citing Sept. 2016 Op. at 10). While she was unable to return to work at Sewells Point Clinic, Plaintiff began to seek work elsewhere. Sept. 2016 Op. at 11. At the time that she communicated her resignation to TCA, Plaintiff had already begun working at other medical facilities and continued doing so after her resignation from TCA. Id. at 11–15.

On December 19, 2013, Plaintiff brought suit against TCA and the Navy based upon their alleged failure to reasonably accommodate Plaintiff's disability. Compl., ECF No. 1. Plaintiff sought compensatory damages for lost wages, future lost earnings and benefits, emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life. Id. at 15. Plaintiff also requested injunctive relief to compel the Navy to institute "more responsive processes, [and] to provide training on issues related to reasonable accommodations," punitive damages, attorney's fees and costs, and pre-judgment and post-judgement interest. Id. On the morning that the jury trial began, February 16, 2016, co-defendant/joint employer TCA settled with Plaintiff, leaving the Navy as the sole defendant. Nov. 2016 Order at 5 (citing Trial Min., ECF No. 304; Stipulation of Dismissal, ECF No. 18).

Following a two-week jury trial, the jury returned a verdict in Plaintiff's favor, finding that the Navy failed to provide Plaintiff a reasonable accommodation, but awarded Plaintiff no compensatory damages.

Verdict Form, ECF No. 314. Following the conclusion of the trial, the Court heard additional evidence on Plaintiff's request for equitable relief. On September 8, 2016, after the issue of equitable relief was fully briefed, the Court issued an Opinion and Order awarding back pay damages to Plaintiff in the amount of $40,842.42 plus pre-judgment and post-judgment interest. Sept. 2016 Op. at 80 (internal citations omitted). The Court requested the Clerk of Court to enter judgment on the jury's verdict, id. at 81, and judgment was entered the same day, J. in a Civ. Case, ECF No. 338. Plaintiff thereafter filed a motion for attorney's fees, ECF No. 340, and, following the Court's ruling on the Navy's motion for judgment as a matter of law, ECF No. 368, Plaintiff filed a motion for supplemental attorney's fees, ECF No. 372. Having been fully briefed, this issue is ripe for review.

II. Standard for Attorney's Fee Award

A. Entitlement to Fee Award

Traditionally, under the "American Rule," each party in a lawsuit bears its own attorney's fees unless a statute explicitly authorizes otherwise. Hensley v. Eckerhart , 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The instant civil case was filed pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. , seeking to remedy an alleged failure to reasonably accommodate Plaintiff's medical disability. Compl. ¶ 1. Congress authorized courts to award reasonable attorney's fees to the "prevailing party" under this statute, see 29 U.S.C. § 794a(b), and it is undisputed that Plaintiff qualifies as a "prevailing party" in this case, Farrar v. Hobby , 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (holding that a "prevailing party" is one who has obtained "at least some relief on the merits of his claim" such that the legal relationship between the parties has...