Howe v. City of Akron
| Decision Date | 10 March 2016 |
| Docket Number | CASE NO. 5:06-cv-2779 |
| Parties | WILLIAM HOWE, et al., PLAINTIFFS, v. CITY OF AKRON, DEFENDANT. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION
On September 17, 2015, the Sixth Circuit Court of Appeals issued a decision reversing the award of back pay and remanding the matter for further proceedings before a different judicial officer. Howe v. City of Akron, 801 F.3d 718, 757-58 (6th Cir. 2015). Following reassignment to the undersigned on October 9, 2015, the parties resolved all issues relating to damages and interest, leaving only the question of the proper award of attorney's fees and costs for the Court to decide. Now before the Court are plaintiffs' various applications for attorney's fees and costs. (Doc. Nos. 615, 668, 806.) Defendant has filed a response to each fee petition. (Doc. Nos. 635, 680, 809, respectively.) Defendant also submitted separate oppositions to plaintiffs' requests for costs and expenses.1 (Doc. No. 637, 681, 810, respectively.)
In December 2004, defendant City of Akron ("defendant" or "City") administered promotional examinations for firefighters interested in consideration for the positions oflieutenant and captain of the Akron Fire Department. Over the next eleven years, the parties litigated the results of these examinations, and the promotions based on the examination results, in federal and state court. It is not surprising, therefore, that the facts surrounding this litigation have been the subject of numerous opinions issued by the district court and the court of appeals. Rather than retrace that well-trodden ground, the Court shall limit its recitation of the factual and procedural background of this case to those facts necessary to properly frame the present fee petitions.
Plaintiffs are Akron City firefighters who sat for the 2004 examinations. The first lawsuit was filed in state court on April 7, 2006, challenging the examinations under Ohio law. William Howe, et al. v. The City of Akron, Summit County Common Pleas No. CV-2006-04-2310. Plaintiffs filed the present lawsuit approximately seven months later, on November 16, 2006, alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. A year later, on October 17, 2007, the Court granted plaintiffs leave to amend their complaint to include the pendent state law claims. Following the filing of the First Amended Complaint ("FAC") in this case, the state action was dismissed without prejudice. See Howe v. City of Akron, 789 F. Supp. 2d 786, 791 (N.D. Ohio 2010).
The FAC contained twelve causes of action—divided among various federal and state statutes and constitutional provisions—alleging race and age discrimination and equal protection violations. (Doc. No. 23.) With respect to discrimination, plaintiffs raised both disparate impact and disparate treatment claims. After a period of discovery and motion practice, the Court denieddefendant's motion for summary judgment, finding the existence of genuine issues of material fact. (Doc. No. 167.) Upon reconsideration, the Court dismissed the equal protection claims. (Doc. No. 176.)
In late 2008, the case proceeded to trial.2 On December 23, 2008, the jury returned interrogatory answers favoring plaintiffs on all legal issues submitted to them for consideration and awarding each plaintiff compensatory damages and front pay. (Doc. No. 237.) Following the receipt of the jury's interrogatory answers, the court entered an order finding that it was bound, for purposes of plaintiffs' equitable claims, by the jury's fact findings. (Doc. No. 238 at 74013.) On October 2, 2009, the Court issued findings of fact and conclusions of law on the portion of the lawsuit that was reserved for it to decide. (Doc. No. 277.) In accordance with the fact findings of the Court and the jury, the Court entered final judgment in favor of each plaintiff, awarding compensatory damages, front pay, and costs. (Doc. No. 278.)
The parties engaged in substantial post-trial motion practice. On December 30, 2010, the Court granted, in part, the City's Rule 59(e) motion to alter or amend the judgment. (Doc. No. 311.) While the Court affirmed the jury's determinations as to liability, it granted a new trial solely on damages, finding that the jury "lost its way on [this] issue," and noting that the verdicts provided for uniform past and future monetary awards for each plaintiff "regardless of whether the individual passed [the examination], was promoted, or ready to retire." (Id. at 16399.) It was the opinion of the Court that the jury's confusion over damages was the result of a "very poor, tosay the least, presentation" by plaintiffs' counsel on damages making it "unclear then what [counsel] were seeking on behalf of these plaintiffs[.]" (Doc. No. 467 at 12519.) The Court set a new trial limited to the issue of damages for July, 2011.
"What followed was a contentious discovery period, during which the City repeatedly attempted to invoke privilege with respect to its damages calculations, and [p]laintiffs refused to answer questions relating to their promotional exams." Howe v. City of Akron, 557 F. App'x 402, 403 (6th Cir. 2014). The difficulties with damages discovery were exacerbated by the fact that plaintiffs would not commit to a theory for calculating back pay. During this subsequent discovery period, plaintiffs advised the City that they would be abandoning the second of their two theories—the Carr method—in favor of their first method—the Snyder method.4 Based on this representation, defendant conducted no discovery on the Carr method. Ten days before trial, plaintiffs amended their exhibit lists to include a document using the Carr method of calculation. Defendant objected to what it characterized as a "bait and switch." After the trial commenced, the City argued that, due to plaintiffs' discovery hijinks, it could not effectively cross-examine plaintiffs on the Carr method. The district court suspended the trial, excluded part of plaintiffs' damages evidence as a non-monetary sanction, and reopened discovery on damages on this alternative theory. Howe, 557 F. App'x at 404. On September 24, 2012, the district court awarded defendant monetary sanctions in the form of fees pursuant to 28 U.S.C. § 1927, finding that plaintiffs had needlessly multiplied the proceedings and abused the judicial process. (Doc.No. 530.) Plaintiffs' took an interlocutory appeal from the sanctions order.5 The bench trial was subsequently resumed on November 28, 2012, and, on August 30, 2013, the district court issued findings of fact and conclusions of law and awarded individualized damages to each plaintiff. (Doc. No. 588.)
On February 4, 2014, the Sixth Circuit issued an opinion dismissing plaintiffs' interlocutory appeal for lack of jurisdiction. Howe, 557 F. App'x at 405. In a concurring opinion, however, Judge Gilman questioned the propriety of sanctions, stressing that both sides had engaged in dilatory and obstreperous conduct. Id. at 405-07. Following the Sixth Circuit's ruling, the district court reconsidered its sanctions order. Relying, in part, on Judge Gilman's concurring opinion, and further underscoring the fact that "neither party has cleans hands with respect to" damages discovery, the district court vacated the prior sanctions leveled against plaintiffs. (Doc. No. 722 at 18053.) The Court explained that, "[i]n lieu of adhering to its current monetary sanction, the Court will take into account [p]laintiffs' counsel's conduct as well as [d]efendant's counsel's conduct when determining the proper amount of fees to award." (Id.)
The City appealed the Court's award of back pay, the issuance of a permanent injunction, and the appointment of a court monitor to oversee the selection process and address interim issues arising in the litigation. In its September 17, 2015 decision, the Sixth Circuit panelrecounted the lengthy and, at times, contentious proceedings in the district court, noting that the "district judge faced parties who have engaged in petty, scorched-earth litigation tactics." Howe, 801 F.3d at 757 () The Court accused both sides of playing a "childish withholding game" during damages discovery, "rather than providing necessary information to determine how best to make the [p]laintiffs whole." Id. at 750. Nevertheless, the court determined that the evidentiary sanction against plaintiffs was unwarranted, as any harm resulting from late discovery disclosure could have been alleviated on cross-examination. Id. at 749. Ultimately, the court affirmed the liability judgment, reversed the back pay award, and remanded the matter to a different district judge for a new trial on the issue of back pay. The court also acknowledged that the newly assigned judge would need to "undertake the difficult task of calculating and awarding attorney's fees to the [p]laintiffs' attorneys." Id. at 757. Finally, the circuit panel also modified the district court's appointment of a court monitor by limiting the court monitor's involvement to one promotional cycle. Id. at 757-58.
On December 1, 2015, this Court held a settlement conference wherein the parties reached agreement as to the issue of back pay. At the conclusion of the settlement conference, the parties agreed to return to attempt to mediate the issue of fees and costs. On December 8, 2015, the Court conducted a mediation of attorney's fees and costs. Though the mediation ended that day without a final resolution, the parties agreed to continue informal efforts...
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