Fox v. Pittsburg State Univ.

• Citation: 258 F.Supp.3d 1243
• Decision Date: 26 June 2017
• Docket Number: Case No. 14-CV-2606-JAR.
• Court: U.S. District Court — District of Kansas
• Parties: Martha FOX, Plaintiff, v. PITTSBURG STATE UNIVERSITY, Defendant.

258 F.Supp.3d 1243

Martha FOX, Plaintiff,

v.PITTSBURG STATE UNIVERSITY, Defendant.

Case No. 14-CV-2606-JAR.

United States District Court, D. Kansas.

Signed June 26, 2017

Amy P. Maloney, Matthew J. O'Laughlin, Maloney O'Laughlin, Kansas City, MO, for Plaintiff.

M.J. Willoughby, Office of Attorney General, Whitney L. Casement, Goodell, Stratton, Edmonds & Palmer, LLP, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE

This employment discrimination action was tried to a jury, which found in favor of Plaintiff Martha Fox on her claims of hostile work environment sexual harassment under Title VII and Title IX against Defendant Pittsburg State University ("PSU"). This matter comes before the Court on Plaintiff's Motion to Alter Judgment for Attorneys' Fees and Costs (Doc. 211). In conjunction with Plaintiff's fee application, the Court also considers Defendant's Motion to Strike Plaintiff's Reply Brief in Support of Attorneys' Fees and Costs (Doc. 243). The motions are fully briefed, and the Court is prepared to rule. As explained more fully below, Plaintiff's motion for attorneys' fees and costs is granted in part and denied in part. Defendant's motion to strike the reply brief is denied.

I. Background

A complete factual background of this case has been recounted in detail in both the summary judgment Order and in the Court's Order ruling on the merits-based post trial motions.¹ The Court incorporates by reference this factual matter to the extent it is relevant to the fee dispute here. This matter arose out of Fox's employment as a custodial specialist at PSU between July 2010 and November 2015. Plaintiff contended that she was subjected to sexual harassment from April 2012 to March 2014. This was perpetrated by Custodial Supervisor Jana Giles and custodian Cathy Butler Brown. Plaintiff complained to members of the custodial management, including Wanda Endicott and Kevin Malle. However, when Plaintiff complained of the sexual harassment, Plaintiff contended that nothing was done to stop or deter the conduct.

In February 2014, Plaintiff complained to Cindy Johnson, the Director of Equal Opportunity and Affirmative Action, about the ongoing sexual harassment. Plaintiff alleged Defendant failed to properly investigate the complaints because Johnson refused to interview witnesses. Plaintiff contended she was told that the claim was not investigated because Johnson feared it would start a "firestorm." Plaintiff alleged she did not receive sexual harassment training until after the alleged harassment took place. Plaintiff alleged she suffered emotional distress damages as a result of the sexual harassment endured. Plaintiff's Complaint alleged hostile work environment sexual harassment in violation of Title VII and Title IX and retaliation in violation of Title VII and Title IX.

Although a relatively straight-forward employment discrimination case, this matter has been vigorously defended since it was filed on December 2, 2014.² Defendant produced 5,000 documents in this matter. Defendant made an inordinate amount of discovery requests. Defendant filed two motions to compel.³ United States Magistrate Judge Kenneth Gale granted in part and denied in part the first motion to compel, and granted in part and denied in part the second motion to compel.⁴ Defendant offered the expert testimony of Dr. Thomas Anderson, and Plaintiff filed a Daubertmotion seeking exclusion of that expert, which was granted.⁵ Defendant filed a motion for summary judgment that spanned 64 pages with 484 pages of exhibits.⁶ The Court granted summary judgment on the claims of retaliation under Title VII and Title IX, and denied summary judgment on the claims of hostile work environment sexual harassment under Title VII and Title IX.⁷ Defendant filed a motion to reconsider the Court's exclusion of Dr. Anderson, which was denied.⁸ Defendant filed a 25–page motion in liminecontaining 36 objections for the Court to rule on, and Plaintiff filed a 12–page motion in limine.⁹ Plaintiff listed six witnesses on her final witness compared to twenty witnesses listed on Defendant's final witness list.¹⁰ Following a 7–day jury trial, the jury rendered a verdict of $100,000 on the Title VII and $130,000 on the Title IX hostile work environment sexual harassment claims. During post-trial motion briefing, Defendant filed tworenewed motions for judgment as a matter of law to eachclaim in contravention of the Federal Rules of Civil Procedure.¹¹ Defendant also filed a motion for a new trial.¹² The post-trial briefing in this matter spanned 199 pages in total without exhibits. The Court issued an order on the post-trial motions of nearly 70 pages to address the inordinate number of arguments made in the post-trial briefing.

Consistent with its incredibly abusive briefing tactics, Defendant filed tworesponse briefs to Plaintiff's onemotion for attorneys' fees and costs—one response to the request for attorneys' fees¹³ and another response to the request for an award of costs.¹⁴ Both of these responses were disproportionately lengthy given Plaintiff's 15–page brief combining the motion for attorneys' fees and costs. Defendant's response to the attorneys' fees motion spanned 29 pages with 73 pages of exhibits, and Defendant's response to the costs spanned 19 pages with 7 pages of exhibits. Beyond the substantive briefing on attorneys' fees and costs, Defendant filed a motion to strike Plaintiff's reply addressing both the attorneys' fees and costs.¹⁵ Throughout this litigation, Defendant has filed extensive briefing in circumvention of the page limitation in Local Rule 7.1(e) without seeking leave from the Court. Defendant's strategy when handling this matter has been litigious, vexatious, unprofessional,¹⁶ and contrary to the spirit of the Federal Rules of Civil Procedure and the local rules of this Court.¹⁷ Largely for this reason, the Court grants Plaintiff an award of reasonable attorneys' fees that is higher than what would be expected in a typical case alleging similar claims. Unfortunately, this behavior has run up substantial attorneys' fees, but Defendant has only itself to blame.

II. Discussion

A. Motion to Strike Reply

Defendant argues Plaintiff's reply brief to the motion for attorneys' fees and costs should be stricken under Federal Rule of Civil Procedure Rule 12(f). Specifically, Defendant requests the Court strike the nine exhibits filed with the reply and new arguments made in the reply. Rule 12(f) provides "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Plaintiff's reply is not a "pleading" that the Court may strike under Rule 12(f).¹⁸ Thus, this rule is not the proper procedure for a motion to strike.

In any event, Defendant does not identify and the Court cannot find new arguments in the reply. Merely stating Plaintiff raised new arguments is insufficient and not well taken by the Court. As to the nine exhibits attached to the reply, the Court finds these are all responsive to arguments raised in Defendant's response.¹⁹ There is nothing in the reply that should have been an unfair surprise to Defendant.

Further, even assuming Plaintiff's reply raised new arguments, the Court also concludes a motion to strike is not the proper procedure here. When a reply raises a new argument, "the proper course of action for the nonmoving party to respond to such arguments is to seek leave to file a surreply."²⁰ Thus, the motion to strike Plaintiff's reply is denied.

B. Attorneys' Fees

Plaintiff requests $278,808 in attorneys' fees for counsel Matthew O'Laughlin and Amy Maloney and legal assistant Robin Henshaw. In Title VII and Title IX cases, a district court, "in its discretion, may allow the prevailing party ... a reasonable attorney's fee."²¹ To obtain attorneys' fees, "a claimant must prove two elements: (1) that the claimant was the 'prevailing party' in the proceeding; and (2) that the claimant's fee request is 'reasonable.' "²² Defendant contests both Plaintiff's status as the prevailing party and the reasonableness of the request for attorneys' fees.

1. Duty to Meet and Confer

Under District of Kansas Local Rule 54.2(a), a party who moves for statutory attorney's fees pursuant to Fed. R. Civ. P. 54(d)(2) must initiate consultation with the other party. Where the parties cannot come to agreement, the moving party must file a statement of consultation, which includes the date of consultation, the names of those who participated, and the results achieved.²³ Plaintiff complied with this rule as is evidenced in Exhibit A to her motion.²⁴ The parties had a telephone conference on November 7, 2016, where Mr. O'Laughlin represented Plaintiff and Ms. Casement represented Defendant. The parties exchanged documentation and Plaintiff agreed to cut some time entries, but the parties were not able to come to an agreement. On November 8, 2016, Ms. Casement emailed on behalf of Defendant that it would not be able to stipulate to any attorneys' fees and costs. Thus, the Court is satisfied the parties attempted to meet and confer.

2. Prevailing Party

Defendant contends Plaintiff is not the prevailing party for purposes of attorneys' fees because Plaintiff had her two retaliation claims dismissed at summary judgment. Thus, Defendant infers that Plaintiff is not the prevailing party for 50% of her claims. A prevailing party is one that succeeds "on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit."²⁵ The Tenth Circuit does not hold a party is not a prevailing party merely because it failed on some claims.²⁶ Rather, the Tenth Circuit has held "where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee."²⁷ However, if the plaintiff presents multiple...