Phetosomphone v. Allison Reed Group, Inc.

• Decision Date: 11 September 1992
• Docket Number: Nos. 92-1117,92-1118,s. 92-1117
• Citation: 984 F.2d 4
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 1120, 60 Empl. Prac. Dec. P 41,982 Nenh PHETOSOMPHONE, Plaintiff, Appellant, v. ALLISON REED GROUP, INC. d/b/a Techni-Craft Plating, Noel Smith and Carol Marsella, Defendants, Appellees. Gary SHOWALTER, Plaintiff, Appellant, v. ALLISON REED GROUP, INC. d/b/a Techni-Craft Plating, Noel Smith and Carol Marsella, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 4

984 F.2d 4

60 Fair Empl.Prac.Cas. (BNA) 1120,

60 Empl. Prac. Dec. P 41,982

Nenh PHETOSOMPHONE, Plaintiff, Appellant, v. ALLISON REED GROUP, INC. d/b/a Techni-Craft Plating, Noel

Smith and Carol Marsella, Defendants, Appellees.

Gary SHOWALTER, Plaintiff, Appellant, v. ALLISON REED GROUP, INC. d/b/a Techni-Craft Plating, Noel

Smith and Carol Marsella, Defendants, Appellees.

Nos. 92-1117, 92-1118.

United States Court of Appeals First Circuit.

Heard Sept. 11, 1992.

Decided Jan. 20, 1993.

Susan Deveney with whom Michael R. Hagopian was on brief, for plaintiffs, appellants.

Elizabeth A. Del Padre, for appellee Noel Smith.

Steven A. Robinson with whom Shayle Robinson was on brief, for appellee Allison Reed Group, Inc. d/b/a Techni-Craft Plating.

Before TORRUELLA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Gary Showalter and Nenh Phetosomphone, plaintiffs in the district court, appeal from that court's award of attorneys' fees following their successful Title VII suit. Because we conclude that the district court did not abuse its considerable discretion in determining an appropriate fee award, we affirm.

I.

Plaintiffs brought separate suits, later consolidated for trial, against Allison Reed Group, Inc. ("Allison Reed"), Noel Smith and Carol Marsella, alleging that plaintiffs were the victims of sexual harassment in the workplace. In their complaints, plaintiffs sought equitable and declaratory relief and back pay under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as compensatory damages under Rhode Island law for the tort of intentional infliction of emotional distress.

Plaintiffs' tort claim against Smith and Marsella was tried to a jury, and the Title VII claim against Allison Reed and Smith was tried simultaneously to the court. ¹ The jury returned a verdict in favor of defendants on the state-law claim. The court ruled, however, that plaintiffs had established a claim of sexual harassment under Title VII against Allison Reed and Smith. The court ordered defendant Allison Reed to establish a procedure for claims of sexual harassment, and enjoined it from allowing future sexual harassment of Showalter should he return to work. ² The court found that Phetosomphone had been constructively discharged as a result of the sexual harassment and had been out of work for eight weeks, and it awarded him back pay of $1,737.60 plus prejudgment interest. The factual and procedural background of this case and the court's rulings on the merits are set forth in detail in Showalter v. Allison Reed Group, Inc., 767 F.Supp. 1205 (D.R.I.1991).

After its decision on the merits, the district court invited plaintiffs to submit an application for costs and attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k). The court stated that "[t]he application for counsel fees must be supported by a detailed, contemporaneous accounting of the time spent by the attorneys on this case." 767 F.Supp. at 1215. Plaintiffs' counsel submitted an application seeking attorneys' fees and costs totalling $83,177. The district court held a hearing on the application, and directed plaintiffs to submit additional documentation in support of their claim.

The district court ultimately allowed only $12,762 in fees and $240 in costs. The court issued a 13-page opinion explaining in detail its reasons for sharply limiting the award both as to hours allowed and the hourly rate claimed. The court attached to its opinion a 16-page appendix in which it itemized each expenditure of counsel time for which compensation was sought, and identified which had been allowed and which had been reduced or stricken. This appeal followed.

II.

Title VII provides that "[i]n any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee (including expert fees) as part of the costs...." 42 U.S.C. § 2000e-5(k). Accordingly, an award of fees under the statute is reviewed primarily under an abuse of discretion standard, and the trial court's range of discretion is particularly broad. United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.1988). We have advised parties on more than one occasion that "the battle [over attorneys' fee awards] is likely to be determined in the trial court." E.g., Foley v. City of Lowell, 948 F.2d 10, 19 (1st Cir.1991). Moreover, "the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983).

In Hensley, the Supreme Court explained that "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate," 461 U.S. at 433, 103 S.Ct. at 1939, adding that adjustments could then be made to reflect "other considerations" including the results obtained. Id. at 434, 103 S.Ct. at 1940. In this case, the district court determined compensable hours as follows: it discounted hours such as trial time to exclude time needed only because of the presence of the state claim; it disallowed hours spent on specific matters that by their nature could relate only to the state-law claim; and it disallowed hours documented so generally that the court could not determine their connection to the Title VII claim. ³ Having derived a total number of allowable hours, the court then multiplied them by an hourly fee, reducing plaintiffs' requested hourly rate from $150 to $90 per hour.

Plaintiffs' broadest challenge on this appeal is to the concept of separating time devoted to the federal and state-law claims. Plaintiffs appear to recognize that, considered separately, time spent on the state-law claims would not warrant attorney's fees, those claims being outside the ambit of Title VII and unsuccessful to boot. Plaintiffs argue, however, that because their Title VII and state-law claims arose out of the same set of facts, virtually all of counsel's efforts to prepare this case for trial related to both the state-law and the federal claims. In these circumstances, plaintiffs contend, the courts have rejected attempts to attribute the hours spent in the preparation of the case to one claim or the other, and instead have viewed the litigation as a whole in setting an appropriate fee award.

It is quite true that in Hensley the Supreme Court cautioned that attempts to allocate hours between claims may be unwarranted where an action involves related legal theories applied to a common core of facts. 461 U.S. at 434-35, 103 S.Ct. at 1940. Thus a district court may find that the federal and state claims are so interrelated, and the time spent in preparation of those claims so overlapping, that an attempt to separate the time attributable to one or the other would be futile. See, e.g., Munson v. Milwaukee Bd School Dirs., 969 F.2d 266, 272 (7th Cir.1992); Wagenmann v. Adams, 829 F.2d 196, 225 (1st Cir.1987). But it does not follow that the district court is prevented from eliminating hours attributable to state-law claims where, as here, the court reasonably concludes that there is not a complete overlap and separation is proper. Indeed, in Hensley itself, where the successful and unsuccessful claims were closely related, the Supreme Court said generally that "[t]he district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." 461 U.S. at 436-37, 103 S.Ct. at 1941.

In this instance there were, as the district court found, discrete tasks performed by plaintiffs' counsel that related only to the state-law claim for intentional infliction of emotional distress: for example, the development of evidence regarding the emotional harm allegedly suffered by Showalter and Phetosomphone (because compensatory damages were not then available under Title VII), and efforts relating to the jury, such as jury selection and preparation of instructions (because only the state-law claim was tried to the jury). On the same principle, we believe that the court was entitled to eliminate or discount hours or other expenses that it found would not have been incurred but for the unsuccessful state-law claim. See Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941; Wagenmann, 829 F.2d at 225 (segregable expenses).

Plaintiffs next criticize the district court's application of this concept, arguing (often in fairly general terms but with some examples) that some of the time discounted or disallowed should have been permitted. For example, plaintiffs say that time spent on state administrative proceedings, which are a predicate to filing a Title VII claim, should have been allowed, and that too little time was permitted for consulting with clients. Admittedly, in excluding or limiting these hours, the district court took a very hard line. The disallowances, however, were not irrational: they stemmed from the district court's decision that in these and similar instances, counsel provided inadequate explanation of the nature of the services for which compensation was claimed, or of their relationship to the Title VII claims, or both. Thus, where the time records contained entries such as "library" and "letters to opposing counsel," the court excluded the time, noting that the entries "left the court guessing about their purposes."

There was some basis for the district court's insistence upon specificity. The court, which was intimately familiar with the case, found that plaintiffs' state-law claim played a very substantial role in plaintiffs' preparation and prosecution of this action. The court expressly rejected the representation of plaintiff's counsel that efforts relating exclusively to the state-law claim comprised less than...