Polee v. Cent. Contra Costa Transit Auth. (CCCTA)

• Decision Date: 29 January 2021
• Docket Number: Case No. 18-cv-05405-SI
• Citation: 516 F.Supp.3d 993
• Court: U.S. District Court — Northern District of California
• Parties: Keith POLEE, Plaintiff, v. CENTRAL CONTRA COSTA TRANSIT AUTHORITY (CCCTA), Defendant.

516 F.Supp.3d 993

Keith POLEE, Plaintiff,

v.CENTRAL CONTRA COSTA TRANSIT AUTHORITY (CCCTA), Defendant.

Case No. 18-cv-05405-SI

United States District Court, N.D. California.

Signed January 29, 2021

Jeremy L. Friedman, Law Offices of Jeremy L. Friedman, Oakland, CA, for Plaintiff.

Angela Clements, Clements Employment Law Clements Employment Law, Jennifer Marie Martinez, Jerri Kamaria Kay-Phillips, Patrick M. Glenn, Hanson Bridgett LLP, San Francisco, CA, for Defendant.

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES AND COSTS

Re: Dkt. Nos. 77, 78

SUSAN ILLSTON, United States District Judge

Now before the Court is plaintiff's motion for attorneys’ fees and costs. For the reasons set forth below, the Court GRANTS plaintiffs’ motion and awards fees and costs in the amount of $440,056.00, plus post-judgment interest on the judgment to be calculated pursuant to 28 U.S.C. § 1961(a).

BACKGROUND

I. Factual background

On September 4, 2018, plaintiff Keith Polee filed this lawsuit against Central Contra Costa Transit Authority ("CCCTA"). Mr. Polee is African-American and had worked as a bus driver for CCCTA from 2007 until his termination in October 2017. Compl. ¶ 4. The complaint alleged that "[d]uring the time of plaintiff's employment, from time to time, African-American CCCTA bus drivers have witnessed and/or been subject to severe hostilities by certain passengers, including racial epithets and violent outbursts." Id. ¶ 7. The complaint alleged that CCCTA management was aware that incidents of racial hostility and abuse towards African-Americans had occurred on its busses, and that bus drivers had reported such incidents to management. Id. ¶ 8. The complaint also alleged that despite such knowledge, CCCTA had failed to institute adequate policies and procedures designed to protect African-American employees and passengers from racial hostility and had failed to take reasonable measures to prevent and eradicate a hostile work environment, and that CCCTA retaliated against African-American employees who reported incidents of severe racial hostility. Id. ¶¶ 8-9.

In September 2017, Mr. Polee was driving a CCCTA bus and was exposed to several racial hostility by a passenger referred to as "Doe One." Id. ¶ 12. Doe One directed racial epithets at Mr. Polee and an African-American passenger, made several loud racist statements, and threatened to kill Mr. Polee. Id. ¶¶ 12-14. Plaintiff was deeply shaken by the incident and reported it to his supervisor. Id. ¶¶ 14-15. Plaintiff told his supervisor that as a result of the incident, it was impossible for him to work. Id. ¶ 16. Plaintiff's supervisor "removed plaintiff from service and involuntarily placed plaintiff on personal sick leave." Id. Plaintiff's supervisor did not offer him any accommodations or otherwise arrange for paid administrative leave. Id.

Several days later, plaintiff spoke to a different CCCTA manager about the incident and requested that CCCTA take action to prevent such incidents from happening. Id. ¶ 18. Plaintiff was informed to go to the police station and make a report. Id. At the police station, plaintiff was told it was unlikely that the police would investigate. Id. ¶ 19. Plaintiff returned to CCCTA and requested that CCCTA investigate the incident. Id. A manager told plaintiff that the incident would be investigated, and the manager placed plaintiff on administrative leave. Id.

Several weeks later, CCCTA sent plaintiff a notice of intent to terminate, placing him on a five day suspension without pay. Id. ¶ 20. The notice accused plaintiff of violating the attendance policy. Id. CCCTA terminated plaintiff on October 13, 2017. Plaintiff unsuccessfully challenged the termination. Id. ¶¶ 21-22.

The complaint alleges claims for wrongful termination and violation of public policy as well as violations of Title VII of the Civil Rights Act of 1964; the California Fair Employment and Housing Act ("FEHA"); the Americans with Disabilities Act, the Family Medical Leave Act; the California Family Rights Act of 1993; and the United States and California Constitutions.

II. Procedural background

After the complaint was filed, the parties engaged in discovery, including written discovery and depositions. The parties attended three in-person settlement conferences on June 21, 2019, December 11, 2019, and February 14, 2020. On February 28, 2020, defendant made a Rule 68 offer of $250,000, which plaintiff accepted. Judgment was entered on March 10, 2020. After entry of judgment, the parties attempted to resolve plaintiff's claim for attorneys’ fees, as well as issues related to payment of the settlement amount to plaintiff and other post-judgment issues. On July 2, 2020, defendant made a payment on the judgment. Dkt. No. 72. The parties were not able to resolve the matters of attorneys’ fees or post-judgment interest, leading to the present motion for attorneys’ fees and costs and post-judgment interest.

DISCUSSION

Plaintiff seeks his reasonable attorneys’ fees and costs pursuant to the fee-shifting provision in FEHA, Cal. Gov't Code § 12965(b), and the other fee-shifting state and federal laws upon which the complaint was based. Under California and federal law, courts use the "lodestar method" to calculate reasonable attorneys’ fees. See Perdue v. Kenny A. ex rel. Winn , 559 U.S. 542, 551, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) ; Chavez v. City of Los Angeles , 47 Cal. 4th 970, 985, 104 Cal.Rptr.3d 710, 224 P.3d 41 (2010). Under the lodestar method, the court calculates the fee by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. Id.

As of the filing of the reply papers, plaintiff seeks the following: (1) merits fees of $373,269, based on a merits lodestar of $287,130 (337.8 hours multiplied by a 2020 hourly rate of $850, and 1.3 enhancement on the merits lodestar); (2) costs of $13,900; (3) post-judgment fees of $85,000 (100 hours multiplied by 2020 hourly rate of $850, no enhancement); and (4) post-judgment interest of $5,465.

Defendant does not dispute that plaintiff is the prevailing party and that he is entitled to his reasonable fees and costs. Instead, defendant argues that plaintiff's lodestar is unreasonable for a variety of reasons, including that the hourly rate sought is too high. Defendant also contends that a state-law multiplier is not warranted, and that the post-judgment interest should be calculated at a different rate, resulting in a post-judgment interest award of $507.

I. Hourly Rate

To determine whether counsel's hourly rates are reasonable, the Court looks to the "hourly amount to which attorneys of like skill in the area would typically be entitled." Ketchum v. Moses , 24 Cal. 4th 1122, 1133, 104 Cal.Rptr.2d 377, 17 P.3d 735 (2001). "The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation." Jordan v. Multnomah Cty. , 815 F.2d 1258, 1263 (9th Cir. 1987). Similarly, Civil Local Rule 54-5(b)(3) requires the party seeking a fee award to submit "[a] brief description of relevant qualifications and experience and a statement of the customary hourly charges of each such person or of comparable prevailing hourly rates or other indication of value of the services." The "party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the ... facts asserted by the prevailing party in its submitted affidavits." Camacho v. Bridgeport Fin., Inc. , 523 F.3d 973, 978-79 (9th Cir. 2008).

Plaintiff's counsel Jeremy Friedman has submitted a declaration describing his qualifications and 33 years of experience specializing in employment discrimination, attorneys’ fees, and false claims litigation. See generally Friedman Decl. (Dkt. No. 79). In his declaration, Mr. Friedman states that he has billed fee-paying clients for work performed in 2020, 2019, and 2017-2018 at then-current hourly rates of $850, $835, and $800, respectively. Id. ¶ 30. Mr. Friedman also discusses the factors and data that he uses to set his hourly rate, including prior cases in which he has been awarded his then-current hourly rates, as well as survey data showing growing billing rates in the Bay Area since 2010. Id. ¶¶ 33-35.

Plaintiff has also submitted the declarations of four Bay Area attorneys who practice in the areas of civil rights, employment discrimination and retaliation, attorney's fees, and false claims, and who attest to Mr. Friedman's experience, skill and reputation and the reasonableness of Mr. Friedman's hourly rate. See Havian Decl. ¶¶ 8-9 (stating that Friedman's $850 hourly rate "is well within, if not below, the rates charged by attorneys in the private marketplace for work performed by attorneys with comparable skills and experience" and that he can "confirm that it is below the rate billed by Constantine Cannon attorneys with similar years of practice, and paid by fee-paying clients on a non-contingent basis.") (Dkt. No. 80); Sturdevant Decl. ¶¶ 8-9 (stating that he "periodically investigate[s] the hourly rates charged by and awarded to large and small firms throughout the Bay Area," "frequently work[s] with Richard Pearl and have used his declarations in cases which I handle concerning reasonable hourly rates," and that Friedman's hourly rate is "entirely consistent with the rates charged by my firm ... and is consistent with the rates charged by my firm.") (Dkt. No. 81); Lawless Decl. ¶¶ 5-11 (stating, inter alia , that she "obtain[s] information concerning market rates from other attorneys in the area that have similar experience doing similar work, from information that occasionally appears in the local press and national bar publications, and in orders awarding attorney's fees in similar cases," "review[s]...