Ramirez v. Merced Cnty.

Decision Date05 September 2013
Docket Number1:11-CV- 531 AWI DLB
CourtU.S. District Court — Eastern District of California
PartiesROSA PATRICIA RAMIREZ, Plaintiff, v. MERCED COUNTY, Defendant.
ORDER ON DEFENDANT'S
MOTION FOR ATTORNEY'S
FEES AND EXPERT WITNESS
COSTS

(Doc. No. 36)

This was a 42 U.S.C. § 12112(b)(5)(A), American with Disabilities Act ("ADA"), case brought by Plaintiff Rosa Ramirez ("Ramirez") against her former employer, the County of Merced ("the County"). In December 2012, the Court granted the County's motion for summary judgment. The County now moves for an award of attorney's fees under either 42 U.S.C. § 12205, 28 U.S.C. § 1927, or the Court's inherent powers. For the reasons that follow, the Court will grant the County's motion in part.

BACKGROUND

In the County's motion for summary judgment, the County argued that they were entitled to judgment for three reasons: (1) Ramirez was not a "qualified individual" under the ADA; (2) Ramirez did not experience an adverse employment action; and (3) Ramirez made previous sworn statements that asserted total disability and did not explain the contradiction between those statements and this lawsuit. See Ramirez v. County of Merced, 2012 U.S. Dist. LEXIS 175476, *10-*11 (E.D. Cal. Dec. 11, 2012). Ramirez filed no opposition or notice of non-opposition to the County's motion, and disputed none of the proposed 96 undisputed material facts that were submitted by the County as part of its motion. This Court relied on the County's undisputed facts, and the evidence that supported those facts, and granted summary judgment motion oneach of the three bases argued by the County. See id. at *17.

With respect to the first basis for judgment, Ramirez was a Systems Analyst II. See id. at *1. The undisputed facts established that Ramirez could not perform the following essential job functions of her job: use a keyboard, take notes, drive for more than an hour, sit for more than an hour, operate office equipment, analyze and interpret data, or prepare reports. See id. at *12. The evidence further established that the County had tried numerous accommodations that were ineffective. See id. at *13. The County had tried Dragon Speak software, ergonomic assessments, leaves of absence, modified work assignments, and provision of assistants. See id. Independent physicians opined that Ramirez could no longer perform the essential functions of her job. See id. at *12 n.6. The County's vocational expert opined that, given the permanent restrictions imposed by Ramirez's physician and the essential functions of the job, it was infeasible for Ramirez to safely perform the functions of her job, even with accommodations. See id. at *13-*14.

With respect to the second basis for judgment, the evidence established that Ramirez voluntarily retired. See id. at *14-*15. Several days prior to the last interactive process meeting, Ramirez requested pay calculations regarding service connected disability retirement. See id. The day after the interactive process meeting, Ramirez applied for service connected disability retirement with the Merced County Employees Retirement Association ("MCERA"),1 and the County actively supported her efforts. See id. Although the County originally medically terminated Ramirez, the County changed the medical termination to voluntary retirement once MCERA approved Ramirez for service connected disability retirement. See id.

With respect to the third basis for judgment, Ramirez made representations to the Social Security Administration ("SSDI"), MCERA, and Standard Insurance Co. that, in effect, she was permanently disabled and could no longer perform the essential functions of her job. See id. at *4-*7. These representations, along with medical records and physicians' opinions, led to Ramirez receiving disability benefits from MCERA and Standard Insurance. See id. However,Ramirez did not explain how her sworn representations to those entities were consistent with this case. See id.

DEFENDANT'S MOTION
Defendant's Argument

The County argues that attorneys' fees are appropriate under 42 U.S.C. § 12205 because this case was frivolous, unreasonable, or without foundation. At the time the lawsuit was filed, Ramirez knew that she had admitted during the interactive process that she could not perform the essential functions of her job and knew that she had stated on several occasions under oath that she was permanently disabled. Further, Ramirez's counsel had represented her prior to this case, and knew about Ramirez's statements at the interactive process to the County and to MCERA and Standard Insurance. Even after hearing Ramirez's deposition testimony that she received disability retirement instead of medical termination, her counsel continued this litigation. Also, Ramirez engaged in delays throughout the process, did not adequately communicate, and did not file an opposition to summary judgment. Ramirez and her counsel were presented with the substantial evidence that showed frivolousness well before the summary judgment motion, but continued to unreasonably prosecute this matter.

The County also argues that sanctions under 28 U.S.C. § 1927 are appropriate. This case is analogous to Edwards v. General Motor Corp., 153 F.3d 242 (5th Cir. 1998), in which fees under § 1927 were awarded against an attorney who knew that his client had no rightful claim to money, but instead continued to pursue the case to harass the defendant. Here, in June 2011, Ramirez's counsel was informed that Ramirez had engaged in the interactive process, had received many prior accommodations, could not perform the essential functions of her job, that Dragon Speak was provided but was inadequate, and that this case was frivolous. Instead of dropping the case, the case was pursued through summary judgment.

Finally, the conduct discussed above is sufficient to demonstrate "bad faith" for purposes of sanctions under the Court's inherent authority.

The County requests $37,133.20 in expert fees and $92,950.00 in attorneys fees. TheCounty argues that lead attorney Roger Matzkind spent 134.5 hours on the case, and attorney James Stone spent 183.5 hours on the case. The County argues that a reasonable hourly rate for Matzkind is $350, and a reasonable hourly rate for Stone is $250.

Plaintiff's Opposition

Ramirez argues that fees and sanctions are inappropriate because this case was not frivolous. The County fails to address the paramount question in this case of why it refused to provide Ramirez with a quiet workstation so that she could use voice technology rather than having to type manually. Ramirez asserts that she sincerely believed that she could have continued to perform her job with the accommodation of a quiet workstation and voice typing technology. This was a key question that a jury would have had to answer if this case had gone to trial. There is also a factual question as to whether Ramirez was forced into applying for disability benefits out of financial necessity. Had this case gone to trial, Ramirez would have testified that, because doctors were saying that she was disabled and unable to perform her job, she applied for disability benefits to survive. Nevertheless, she believed that she still could have performed her job with reasonable accommodation. A jury could have found for Ramirez. The decision to forego further litigation was made on the ground that Ramirez had significantly mitigated her damages by taking advantage of disability benefits and nearly completing a graduate degree.

Ramirez argues that many of the acts that occurred during litigation, and about which the County complains, are disputed and irrelevant to the merits of Ramirez's claim. Ramirez did not take depositions or designate experts because of financial limitations and a lack of need for such evidence. Ramirez intended to rely on evidence and facts already within her and the County's possession. Further, the County was advised in writing that no opposition to the summary judgment motion would be filed, and an offer to dismiss the case was made and rejected. Again, the decision to not oppose summary judgment was based on a perceived difficulty regarding damages, specifically Ramirez had managed to mitigate much of her losses.

Legal Standard

In pertinent part, the ADA provides that "the court in its discretion, may allow theprevailing party ... a reasonable attorney's fee, including litigation expenses and costs . . . ." 42 U.S.C. § 12205; Brown v. Lucky Stores, 246 F.3d 1182, 1190 (9th Cir. 2001). A court may award a prevailing defendant fees if the plaintiff's action was frivolous, unreasonable or groundless/without foundation at the time the complaint was filed, or if the plaintiff continued to litigate after it clearly became so. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1154 (9th Cir. 1997). Subjective bad faith is not necessary. See Christiansburg, 434 U.S. at 421. However, under the Christiansburg standard, "an unsuccessful plaintiff who acted in good faith is generally not at risk of having to pay the other side's attorney's fees." Akiak Native Cmty. v. United States EPA, 625 F.3d 1162, 1166 (9th Cir. 2010). An action is "frivolous" if it lacks an arguable basis in law or in fact. Jones v. Wild Oats Mkts., Inc., 467 F.Supp.2d 1004, 1007 (S.D. Cal. 2006); Peters v. Winco Foods, Inc., 320 F.Supp.2d 1035, 1037 (E.D. Cal. 2004). A case is also frivolous when the result appears obvious or the arguments are wholly without merit. Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007). However, the Supreme Court has directed courts to "resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation." Christiansburg, 434 U.S. at 421-22; EEOC v. Bruno's Restaurant, 13 F.3d 285, 287 (9th Cir. 1992). Such hindsight...

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