McDonnell v. Miller Oil Co., Inc., Civil Action No. 2:95CV638.

• Decision Date: 20 June 1997
• Docket Number: Civil Action No. 2:95CV638.
• Citation: 968 F.Supp. 288
• Parties: Rosemary Cromich McDONNELL, Plaintiff, v. MILLER OIL CO., INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

968 F.Supp. 288

Rosemary Cromich McDONNELL, Plaintiff, v. MILLER OIL CO., INC., Defendant.

Civil Action No. 2:95CV638.

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

June 20, 1997.

Matthew Wayne Tiffany, Virginia Beach, VA, for Plaintiff.

Stanford Beryl Adler, Adler, Rosen & Peters, P.C., Virginia Beach, VA, for Defendant.

OPINION AND ORDER

DOUMAR, District Judge.

This matter is before the Court upon the motion of the plaintiff for attorney's fees pursuant to the relevant provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq.. Because the reasonableness of attorney's fees is largely a question of factual circumstances, the Court discusses the background of this case in some depth.

I. Background

The plaintiff, Ms. McDonnell, sued her former employer, the defendant Miller Oil Co., alleging that the defendant violated the FMLA by failing to reinstate her following her maternity leave.

The evidence presented at trial indicated the following: The plaintiff, Rosemary Cromich McDonnell, was employed by the defendant as a full-time financial analyst until December 23, 1994, on which date she began her maternity leave. She had been offered the position after she worked for Miller Oil part-time while attending business school at the College of William & Mary. Miller Oil was her first and only full-time employer after she received her graduate degree in business administration in May of 1990.

At trial, the plaintiff contended that when asked by her supervisor, Michael Miller, prior to her leave if she would be returning, she answered that she was thinking about returning for part-time employment, to which Michael Miller responded that he would inquire whether such was available. Soon thereafter, Augustus "Gus" Miller, president of Miller Oil Co. and father of Michael Miller, also asked the plaintiff if she would return to work, and the plaintiff said she would. Gus Miller responded that the plaintiff should wait to see how she feels (presumably after giving birth) and not decide immediately.

The plaintiff subsequently took six weeks maternity leave plus an accrued two weeks vacation. Incidentally, she received a bonus of $1000.00 while on maternity leave. She testified, however, that during her leave her desk had been cleared and her personal and professional items warehoused. The plaintiff also claimed that she met with Michael Miller on Thursday, February 23, 1995, in reference to returning to work the following Monday, February 27, 1995. The plaintiff testified that Miller told her that her old job was not available, and he began to describe part-time employment opportunities. According to the plaintiff, these part-time jobs were never actually offered to her, and Miller ultimately stated that there were no openings available, because the plaintiff's work had been satisfactorily completed (presumably by other employees) while she was on leave. The plaintiff further testified that Michael Miller then stated that the plaintiff could collect unemployment. She has since received and exhausted her unemployment benefits.

The defendant painted a different picture at trial. The defendant contended that prior to the initiation of her maternity leave, the plaintiff informed Michael Miller that she did not want a full-time position upon her return. Michael Miller subsequently met with three other Miller Oil supervisors to determine the availability of part-time employment. Miller then offered these to the plaintiff before her leave began, but the plaintiff declined them. Instead, the plaintiff left "up in the air" which job she wanted upon her return.

The defendant offered testimony that all employees' personal effects were warehoused like the plaintiff's personal effects, because Miller Oil Co. was undergoing facility repair and renovation, and many of Miller Oil's employees were being relocated. The defendant also pointed to the bonus the plaintiff received during her leave as evidence that Miller Oil expected the plaintiff to return to work after her leave ended.

The defendant alleged that eight weeks after the start of her leave, on Monday, February 27, 1995, the plaintiff again met with Miller about returning for work that day. The defendant presented testimony that the plaintiff again asked for part-time employment, but refused all the part-time job opportunities that the defendant offered her previously. Shortly prior to trial, defendant offered plaintiff a full time position, but the plaintiff refused.

Aside from the issue of liability under the FMLA, another central dispute was whether the plaintiff reasonably attempted to mitigate her damages, if in fact the jury were to find that the defendant violated the FMLA. The plaintiff presented evidence that she mailed her resume to approximately eighty-four companies, and that she interviewed with Prudential in September of 1995. This was the plaintiff's only interview in the nearly eleven months between the dispute with Miller and the commencement of trial.

The defendant argued that the plaintiff admitted that each of the eighty-four resumes were sent without a cover letter, in blank envelopes, and without regard to whether the addressee companies were actively recruiting new employees. In addition, the eighty-four resumes were mailed at the rate of three or four per week for twenty-six weeks. This resume campaign corresponded with and ended exactly at the point that the plaintiff's unemployment benefits ran out.¹

The defendant also showed that the plaintiff was denied unemployment benefits for a one-week period, because she failed to respond to an employment opportunity, which was made known to her by the Virginia Employment Commission ("VEC"). The VEC's letter to the plaintiff required a response from the plaintiff, stating:

It is important that you call us immediately even if you are not interested in this particular job.... If you are receiving unemployment benefits, failure to respond within two (2) weeks of this notice may affect your eligibility to receive future benefits.

The plaintiff neither contacted the potential employer about the job nor informed VEC that she was not interested. The VEC consequently suspended the plaintiff's benefits for one week, stating that "[t]he Virginia Unemployment Compensation Act provides that in order to be eligible for benefits, you must report to the Virginia Employment Commission as directed. Since you failed to meet this requirement, you are ineligible for benefits during the [stated] period." The plaintiff testified that she failed to act on the notice from VEC because she forgot, but she later stated that she may not have read the letter completely. In any event, she clearly did not contact the potential employer or the VEC.

The defendant further successfully showed that the plaintiff failed to read the Sunday classifieds regularly, and that the plaintiff did not seek the assistance of either an employment agency or the placement offices of either of her alma maters.

At the conclusion of the trial, the jury returned a verdict for the plaintiff, but fixed the plaintiff's damages at zero dollars ($0.00). Subsequently, the Court awarded the plaintiff damages in the nominal amount of $1.00, doubled those damages to $2.00 pursuant to the FMLA's liquidated damages provision, and with accrued interest entered judgment for the plaintiff in the amount of $2.10.

Thus, in returning a verdict for the plaintiff, the jury necessarily found that on Thursday, February 23, 1995, the plaintiff was ready, willing, and able to return on February 27, 1995 to the position she held prior to the commencement of her leave, and that Miller Oil did not restore her to the position she held when her leave began, or to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment. The jury also necessarily found, however, that the defendant satisfied its burden of showing that the plaintiff failed to mitigate her damages — in other words, the jury found that the plaintiff has not wanted to work at all since the events of February 23, 1995.

Following the plaintiff's appeal from this Court's rulings on several issues, the Court of Appeals affirmed this Court in all respects. See McDonnell v. Miller Oil Co., Inc., No. 96-1661, 1997 WL 153820 (4th Cir. 1997) (unpublished disposition). Based upon the jury's finding of a violation of the FMLA, the plaintiff now moves for attorney's fees in the amount of $21,881.57 and associated costs in the amount of $1,865.32.

II. Analysis

After researching the matter at some length, this Court can find no published opinion discussing awards of attorney's fees pursuant to the FMLA. Because of the novelty of the questions involved, particularly given the lack of success for the plaintiff by her attorneys, the Court comprehensively reviews the relevant legal principles.

A. Legal Principles

Section 107 of the FMLA, codified at 29 U.S.C. § 2617, provides in relevant part the following:

(3) Fees and costs. The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.

Thus, the FMLA's attorney's fee provision provides yet another variation in a growing number of statutory provisions designed to shift the burden of attorney's fees from the litigation's victor to the litigation's vanquished. Such provisions commonly have been enacted not only in the civil rights litigation context, such as in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5(k), but also in such diverse statutes as the Freedom of Information Act, 5 U.S.C. § 552, the Clean Air Act, 42 U.S.C. §§ 7601 et seq., the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq., and even in the Rules of Civil Procedure, see Fed. R. Civ. Proc. 11.

These enactments...