Sheppard v. Riverview Nursing Centre, Inc., Civ. A. No. S-93-2663.

• Decision Date: 19 December 1994
• Docket Number: Civ. A. No. S-93-2663.
• Citation: 870 F. Supp. 1369
• Parties: Theresa L. SHEPPARD, Plaintiff, v. RIVERVIEW NURSING CENTRE, INC., Defendant.
• Court: U.S. District Court — District of Maryland

870 F. Supp. 1369

Theresa L. SHEPPARD, Plaintiff, v. RIVERVIEW NURSING CENTRE, INC., Defendant.

Civ. A. No. S-93-2663.

United States District Court, D. Maryland.

December 19, 1994.

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Donald N. Rothman, Bradford W. Warbasse, Gordon, Feinblatt, Rothman, Hoffberger & Hollander, Baltimore, MD, for plaintiff.

Jeffrey Rockman, Astroth, Serotte, Rockman & Wescott, Paul M. Vettori, Kenny, Vettori & Robinson, P.A., Baltimore, MD, for defendant.

MEMORANDUM OPINION

SMALKIN, District Judge.

This case is before the Court on plaintiff's motion for an award of attorney's fees and costs. Plaintiff has requested a total award of $44,500. Defendant opposes this motion and argues that the plaintiff is not entitled to recover any attorney's fees. No oral hearing on this matter is necessary. Local Rule 105.6 (D.Md.).

I. Factual Background

Plaintiff filed this suit in September 1993 alleging violations of the Civil Rights Act of 1964, commonly known as Title VII. She alleged that she was laid off in April 1992 by the defendant because she was pregnant. Approximately five weeks after her suit was filed, the defendant made a $5,000 offer of judgment under Federal Rule of Civil Procedure 68. The offer included "costs and attorney's fees accrued" as of the date of the offer. The plaintiff refused this offer.

After a four-day trial which began on October 31, 1994, the jury found that the plaintiff's pregnancy was a motivating factor in the defendant's decision to lay her off. The jury also found, however, that the defendant would have selected the plaintiff for the layoff even in the absence of the unlawful motive— i.e., even if the defendant had not considered her pregnancy in making its decision. In light of the verdict and pursuant to the Court's instructions, the jury awarded no compensatory damages, and the punitive damages phase of the trial was not reached. In accordance with 42 U.S.C. § 2000e-5(g)(2)(B)(ii), the Court awarded no backpay. The Court also denied the plaintiff's request for injunctive relief, finding no danger of a continuing violation of the plaintiff's right to be free from illegal discrimination. Finally, the Court entered a declaratory judgment in the plaintiff's favor in accordance with the jury's finding that her pregnancy was a motivating factor in the defendant's decision to lay her off. Plaintiff's motion for a new trial was later denied.

II. Legal Background

This Title VII case is one of the first going to trial before this Court to be governed by the Civil Rights Act of 1991. Pub.L. No. 102-166, 105 Stat. 1071 (1991) hereinafter 1991 Act. The 1991 Act represents a response to a perceived need for expanded remedies under Title VII and makes compensatory and punitive damages available to victims of intentional employment discrimination. See 42 U.S.C. § 1981a; H.R.Rept. No. 102-40(II), 102nd Cong., 1st Sess., at 24-30 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 694, 717-22. Another important provision of the 1991 Act, now codified at 42 U.S.C. § 2000e-2(m), applies to so-called "mixed-motive" or "same-decision" cases. This provision was designed to overturn the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Price Waterhouse, the Supreme Court held that, even where an employer relies in part on an impermissible motive in making an employment decision, the employer would not be liable for violating Title VII if it could prove that it would have made the same decision in the absence of the prohibited motivation.

Congress modified this outcome. The 1991 Act provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m). In other words, an employer has violated Title VII if any of the prohibited criteria played any role at all in the disputed employment decision. However, if legitimate factors also motivated the decision and the employer can demonstrate that the same decision would have been made if it had not relied on the impermissible motivating factor, the damages that the plaintiff may recover for the Title VII violation are very limited. The plaintiff may not recover backpay, compensatory damages or punitive damages, and the court may not issue any order requiring any admission, reinstatement, hiring, promotion, or payment. 42 U.S.C. § 2000e-5(g)(2)(B)(ii). The only remedies available are declaratory relief, limited types of injunctive relief, and attorney's fees and costs. 42 U.S.C. § 2000e-5(g)(2)(B)(i).

III. Controlling Statute and Other Attorney's Fee Provisions

In light of the jury's findings that the plaintiff's pregnancy was a motivating factor in the defendant's decision to lay her off and that the defendant would have made the same decision in the absence of the impressible factor, 42 U.S.C. § 2000e-5(g)(2)(B)¹ governs the relief available to the plaintiff and controls this dispute over attorney's fees. Defendant's contention that 42 U.S.C. § 1988² governs because the plaintiff sought relief under 42 U.S.C. § 1981a in her complaint lacks merit. As described above, section 1981a makes compensatory and punitive damages available to victims of intentional discrimination prohibited by Title VII. In this case, however, the plaintiff is precluded from recovering such damages by 42 U.S.C. § 2000e-5(g)(2)(B); therefore, section 1981a is inapplicable and section 1988 does not govern her claim for attorney's fees. Plaintiff's claim is governed by section 2000e-5(g)(2)(B), which specifically addresses the relief available in same-decision cases.

The defendant argues in the alternative that the general Title VII fee-shifting provision, 42 U.S.C. § 2000e-5(k),³ governs this case. Under this section, a prevailing party in "any" Title VII action may be awarded attorney's fees. 42 U.S.C. § 2000e-5(k). It is axiomatic that where two statutory provisions apply to a given situation, one specific and one general, the more specific one controls. As the Supreme Court has explained, "It is a basic principle of statutory construction that a specific statute ... controls over a general provision ... particularly when the two are interrelated and closely positioned, both in fact being parts of the same act." HCSC-Laundry v. United States, 450 U.S. 1, 6, 101 S.Ct. 836, 839, 67 L.Ed.2d 1 (1980) (per curium). See also Farmer v. Employment Security Comm'n of North Carolina, 4 F.3d 1274, 1284 (4th Cir. 1993).

Section 2000e-5(g)(2)(B), unlike section 2000e-5(k), applies only to mixed-motive Title VII cases in which the defendant proves that the same decision would have been made in the absence of the discriminatory motive. The jury in this case made precisely the factual determination described by the specific statute. Consequently, the relief available in this action is determined solely by reference to the specifically applicable statute, section 2000e-5(g)(2)(B).

Section 2000e-5(g)(2)(B), while authorizing recovery of attorney's fees and costs in same-decision cases, also contains language limiting such fees and costs to those "demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m)...." 42 U.S.C. § 2000e-5(g)(2)(B)(i). This restrictive language does not apply to a case such as this one, in which there is only one claim of discrimination, which turns out to be a mixed-motive claim, ever at issue in the lawsuit.⁴

IV. Calculating Plaintiff's Attorney's Fees and Costs

The plaintiff claims she incurred attorney's fees in the amount of $80,899.50 and costs of $4,509.74. The plaintiff has voluntarily reduced her request for attorney fees by approximately fifty percent, from $80,899.50 to $40,000.

Counsel for a party statutorily entitled to recover attorney's fees must exercise "billing judgment" and exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id. at 434, 103 S.Ct. at 1940 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980)); Daly v. Hill, 790 F.2d 1071, 1079 (4th Cir.1986). In this case, the plaintiff's motion for attorney's fees did not specifically exclude such hours, but instead reduced the overall dollar figure by a blanket fifty percent. Although the Court will grant the plaintiff's motion for attorney's fees in the amount of $40,000, a more refined analysis than that of the plaintiff is appropriate. E.E.O.C. v. Service News Co., 898 F.2d 958, 965 (4th Cir.1990) (disapproving of brevity of court's analysis and noting that "courts must consider and discuss the twelve factors set forth in Johnson").

The starting point for establishing the proper amount of an attorney's fee award is the number of hours reasonable expended, multiplied by a reasonable hourly rate. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 174 (4th Cir.1994). See also Hensley, 461 U.S. at 433, 103 S.Ct. at 1939; Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984). To determine the appropriate level of hours and rates, the Fourth Circuit has long applied the twelve factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). See Barber v. Kimbrell, 577 F.2d 216, 266 (4th Cir.1978) (adopting twelve factor test), cert. denied, 439 U.S. 934, 99 S.Ct. 329, 58 L.Ed.2d 330 (1978); Daly, 790 F.2d at 1078 (Johnson factors are to be considered at the stage of setting reasonable rate and number of hours reasonably expended). The Johnson factors are 1) the time and labor required; 2) the novelty and...