Makray v. Perez

• Decision Date: 08 February 2016
• Docket Number: Civil Action No. 12-520 (BAH)
• Citation: 159 F.Supp.3d 25
• Parties: Laura J. Makray, Plaintiff, v. Thomas Perez, Secretary, U.S. Department of Labor Defendant.
• Court: U.S. District Court — District of Columbia

159 F.Supp.3d 25

Laura J. Makray, Plaintiff,

v.Thomas Perez, Secretary, U.S. Department of Labor Defendant.

Civil Action No. 12-520 (BAH)

United States District Court, District of Columbia.

Signed February 8, 2016

Lauren Marsh Drabic, Robert C. Seldon, Charlene Bofinger, Seldon Bofinger & Associates, P.C., Lauren Elizabeth Marsh, Robert C. Seldon & Associates, P.C., Washington, DC, for Plaintiff.

Benton Gregory Peterson, Alan R. Burch, Peter C. Pfaffenroth, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL United States District Judge

The plaintiff, Laura Makray, prevailed at trial on her claim that her employer, the Office of Inspector General (“OIG”) of the U.S. Department of Labor (“DOL” or “defendant”), discriminated against her on the basis of her gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. , and the jury awarded her damages of $200,000.00 stemming from her non-selection for promotion to Director of DOL's Office of Audit Quality Assurance in January 2011. See Compl. ¶ 9, ECF No. 1; Judgment on the Verdict, ECF No. 71. With this judgment now final, the plaintiff seeks reimbursement of attorneys' fees and litigation costs she incurred in pursuing her successful claim throughout the past several years. The parties have largely resolved any remaining differences as to these fees and costs, leaving in dispute only the reimbursement rate for roughly 350 hours billed by the plaintiff's lead counsel to prepare for trial and present the case to the jury. Pending before the Court is the plaintiff's Petition for a Partial Award at the Salazar /LSI Rate (“Pl.'s Pet.”), ECF No. 85, to cover these trial preparation and presentation hours. For the reasons set out below, the plaintiff's request for reimbursement for these hours at the applicable rate established in Salazar v. District of Columbia , 123 F.Supp.2d 8 (D.D.C.2000), is granted.

I. BACKGROUND

Compared to typical employment discrimination claims, the plaintiff's Title VII gender discrimination claim against DOL presented several unique challenges. First, the DOL component accused of gender discrimination is the supposed watchdog for the very federal agency tasked with enforcing federal labor and employment laws. Thus, the DOL OIG is far from a conventional defendant. Since DOL OIG functions ostensibly as an arm of federal law enforcement, the plaintiff's success at trial rested in large measure on her ability to convince the jury that senior DOL OIG officials, who themselves are experienced investigators responsible for rooting out misconduct within DOL, intentionally discriminated against the plaintiff because she is a woman. Pl.'s Pet. at 20 (citing Decl. Robert C. Seldon (Apr. 21, 2015) (“Seldon Decl.”) ¶ 75, ECF No. 85-1). Indeed, during the course of the two-week trial, the jury in this case heard testimony from sixteen witnesses who were current or former DOL officials, including senior officials directly involved in the selection process that led to the plaintiff's challenged non-selection for promotion. Minute Entries, dated Feb. 9–13, 18–20, 2015; Seldon Decl. ¶ 73. A number of these officials were called to testify as adverse witnesses during the plaintiff's case-in-chief, requiring plaintiff's counsel to undermine, methodically and persuasively, the credibility of these experienced officials regarding their purported basis for failing to promote the plaintiff. Id. ¶ 75.

Second, even where a witness was inclined to be supportive of the plaintiff's position, eliciting such testimony before the jury was a difficult task. Though the Court denied the plaintiff's blanket request to treat witnesses who remained employed at DOL OIG as hostile, see Trial Tr. (Feb. 11, 2015 AM) at 8:13–13:18, these witnesses had to testify in front of their boss, Assistant Inspector General (“AIG”) for Audit Elliot Lewis, who was accused of condoning the discriminatory conduct engaged in by his management team and sat at defense table as the agency representative during trial, see, e.g., id. at 4:14-17. Despite this potential chill of having to provide critical testimony about a current supervisor's management, some current DOL OIG employees nonetheless testified in support of the plaintiff's claim. One such current DOL OIG employee, who served as the plaintiff's immediate supervisor and Director of the Office of National Talent Pool and Training, gave troubling testimony about experiencing setbacks at work after he provided testimony favorable to the plaintiff at an earlier deposition. Id. at 59:16–61:13 (Testimony of Richard Woodford). Specifically, this witness testified at trial that, after he discussed his prior deposition in this matter with AIG Lewis, he lost his staff of three subordinate direct reports, making it “more challenging ... to get [work] done.” Id. AIG Lewis and his deputy are responsible for the assignment of staff to this witness's department. Id.¹

Finally, the plaintiff's presentation of her case was further complicated by DOL's shifting defenses and legal positions both before and during trial. Pl.'s Pet at 19–20; see also Seldon Decl. ¶¶ 68–70. As just a sampling of the moving target presented to the plaintiff's attorneys, DOL argued initially in its motion for summary judgment that the plaintiff's non-selection for promotion stemmed in part from her relative lack of expertise in audit quality assurance. Def.'s Mem. Supp. Mot. Summ. J. at 24, ECF No. 19 (arguing that selectee “had considerably more directly related experience [than] Ms. Makray, having served as an auditor for 20 years at the time of his promotion, whereas Ms. Makray did not have auditing as a part of her position description at the time of her interview, but as of the time of her interview was assigned audits on an ad hoc basis”); Pl.'s Pet. at 19.² In subsequent briefing, however, the defendant abandoned this position, arguing that “in-depth technical expertise ... [had] no basis in the reality of this hiring decision,” Def.'s Reply Mem. Supp. Mot. Summ. J. at 11, ECF No. 27 (internal quotations omitted), only to later revive its contention, during its opening statement at trial, that the plaintiff was not promoted due partially to her relative lack of expertise, Trial Testimony (Feb. 9, 2015 PM) at 59. DOL also posited in its opening statement that the plaintiff's non-selection was due to her inferior interview performance, her purported lack of leadership skills and, for the first time, her lack of interpersonal skills. Id. at 59:24–60:3, 62:14–63:24; Pl.'s Pet. at 19.³ In support, the defendant elicited extensive testimony at trial from DOL OIG officials who previously testified in depositions that they did not participate in—or did not recall their participation in-the challenged selection process. Id. at 19–20 (citing Seldon Decl. ¶ 70).

Notwithstanding the obvious pressures on witnesses, as well as the shifting defense theories to justify the agency's treatment of the plaintiff (as well as other women who had worked in the same agency component and testified about their perceptions of unfair treatment under the same supervisor and his management team), the plaintiff prevailed at trial, with the jury awarding substantial economic damages. See Judgment on the Verdict. This Court also awarded nearly all of the plaintiff's requested equitable relief. Minute Order, dated Aug. 24, 2015.⁴

With the merits of the plaintiff's claim now resolved, the parties have agreed upon a “partial, interim” fee award under which time billed by the plaintiff's attorneys would be reimbursed, at a minimum, at rates provided by the USAO Laffey Matrix. Pl.'s Pet. at 1 & n.1. In total, this interim award entitles the plaintiff to at least $634,564.20 in attorneys' fees in connection with the 1667.60 hours her attorneys billed in connection with her underlying Title VII claim. Id. To arrive at this stipulated total, the plaintiff's counsel voluntarily excluded more than 100 hours of attorney time, including sixty-three hours of time deemed to be “duplicative or excessive,” and an across-the-board 10% reduction (totaling 54.21 hours) in the hours billed by a partner who assisted in representing the plaintiff. Seldon Decl. ¶ 52. These voluntary adjustments reduced the total overall award by at least $29,000.00. See id. ¶¶ 93–94. As a result, the stipulated interim total includes: (1) 577.2 hours billed by the plaintiff's lead trial counsel, to be reimbursed at a rate of $520.00 per hour; (2) 233.35 hours billed by a partner, to be reimbursed at a rate of $495.00 per hour; (3) and 857.1 hours billed by an associate, 542.10 of which to be reimbursed at a rate of $255.00 per hour and the remainder of which to be reimbursed at a rate of $300.00 per hour.⁵

Beyond the interim award of $634,564.20 in attorneys' fees, the plaintiff's present petition requests an “additional incremental” award of $92,536.00 reflecting an increased reimbursement rate for the 344 hours her lead counsel billed in connection with preparation for and presentation at trial. Pl.'s Pet. at 1 & nn.1–2.

II. LEGAL STANDARD

Under Title VII, the court “in its discretion, may allow the prevailing party ... a reasonable attorney's fee (including expert fees) as part of the costs.” 42 U.S.C. § 2000e-5(k). While Title VII bars the United States from recovering attorneys' fees, the statute explicitly provides that “the United States shall be liable for costs the same as a private [employer].” Id. In general, “[a] reasonable fee is one that is ‘adequate to attract competent counsel, but that does not produce windfalls to attorneys.’ ” West v. Potter , 717 F.3d 1030, 1033 (D.C.Cir.2013) (quoting Blum v. Stenson , 465 U.S. 886, 897, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) ).

With this standard in mind, the D.C. Circuit has developed a “three-part” analysis for assessing whether a requested fee award is reasonable under federal statutes authorizing fee-shifting. Eley v....