Snell v. Reno Hilton Resort

• Decision Date: 17 June 1996
• Docket Number: No. CV-N-93-472-DWH.,CV-N-93-472-DWH.
• Citation: 930 F. Supp. 1428
• Parties: Dawn SNELL, Plaintiff, v. RENO HILTON RESORT, Defendant.
• Court: U.S. District Court — District of Nevada

930 F. Supp. 1428

Dawn SNELL, Plaintiff, v. RENO HILTON RESORT, Defendant.

No. CV-N-93-472-DWH.

United States District Court, D. Nevada.

June 17, 1996.

COPYRIGHT MATERIAL OMITTED

Frank W. Thompson, Reno, Nevada, for plaintiff.

Scott M. Mahoney, Reno, Nevada, for defendant.

MEMORANDUM DECISION AND ORDER

HAGEN, District Judge.

Before the court is plaintiff's bill of costs (#67) and plaintiffs motion for nontaxable costs and attorney's fees (#69).

Plaintiff asserts she is entitled to a full award of attorney's fees and nontaxable costs pursuant to 42 U.S.C. § 2000e-5(g)(2)(B). Defendant opposes (#72). Forty-two U.S.C. § 2000e-5(g)(2)(B) provides,

On a claim in which an individual proves a violation under section 2000e-2(m)¹ of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court —

(i) may grant ... attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m).

The word "may" in this section indicates that the grant of attorney's fees and costs lies within the court's discretion².

In opposition, defendant argues that under the rationale of Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), plaintiff may not recover one hundred percent of her costs and attorney's fees because she had only incomplete success. In Hensley, the Supreme Court held that "the extent of a plaintiff's success is a crucial factor in awarding attorney's fees under 42 U.S.C. § 1988." Defendant maintains that plaintiff's mixed motives verdict is akin to a plaintiff's verdict in a civil rights case wherein only nominal damages are awarded³ because a mixed motives verdict, like a nominal damages award, "highlights the plaintiffs failure to prove actual, compensable injury." Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).

Defendant further contends that Sheppard cannot be viewed as establishing a right to a one hundred percent award because the Sheppard plaintiff voluntarily reduced her demand by fifty percent⁴, and therefore the court did not reach the question whether a downward adjustment in attorney's fees and costs is "appropriate generally" in mixed motive Title VII cases where the plaintiff is not entitled to damages. Id., at 1380.

In Sheppard, the court, in a ruling not pertinent to this case, held that Rule 68 did not bar recovery of attorney's fees because the legislative history of 42 U.S.C. § 2000e-5(g)(2)(B) indicated that the "attorney's fees and costs" language reflected Congress' intent to bar attorney's fee shifting under Rule 68 in mixed motive cases. The court reasoned that Congress intended to ensure that Title VII plaintiffs would be able to hire competent counsel to pursue their claims. "Because no monetary damages are available where section 2000e-5(g)(2)(B) applies, if post-offer attorney's fees were also potentially cut off, few attorneys would be willing to handle mixed motive cases at all." Id.

This reasoning, while persuasive in the context in which it was used, does not compel the conclusion that a one hundred percent award is appropriate. The statutory language does no more than authorize an award of attorney's fees in the discretion of the court. It does not address the issue before the court in this case, i.e., the amount of attorney's fees reasonably recoverable where the prevailing plaintiff prevails only in the sense that a mixed motive has been established. However, the court shares the concern of the Sheppard court that the statute be interpreted to effectuate the policy objectives of Congress.

The issue appears to be one of first impression. Prior to the 1991 amendments, the Price Waterhouse v. Hopkins decision would have precluded any award of attorney's fees to a plaintiff who was able to prove a discriminatory motive was a substantial factor in the adverse employment decision but who was unable to prove that the same decision would not have occurred in the absence of the impermissible motive. 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). The 1991 amendments to the Civil Rights Act of 1964 partially overruled Price Waterhouse by defining a plaintiff in such a posture as a prevailing party and allowing limited relief, including declaratory and injunctive relief and attorney's fees and costs, in the discretion of the court. 42 U.S.C. § 2000e-2(m); 42 U.S.C. § 2000e-5(g)(2)(B)(i). However, the statute provides no guidance as to the amount of fees reasonable in such a case.

In Hensley v. Eckerhart, the Supreme Court held that the extent of a plaintiff's success is a crucial factor in the court's determination of an attorney's fee award⁵, and the court should only award an amount of fees reasonable in light of the results obtained. 461 U.S. 424, 434-35, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). The Court rejected a rule requiring proportionality between the damages award and an attorney's fee award; however, the Court cautioned that the relief obtained should justify the expenditure of attorney time. Id., at 455 n. 11, 103 S.Ct. at 1951 n. 11. The district court should provide a clear and concise explanation for the fee award; "when an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained." Id., at 437, 103 S.Ct. at 1941.

Ms. Snell, the prevailing party, has achieved only partial or limited success. The jury did find that defendant discriminated against plaintiff. Because the jury also concluded that the adverse employment actions would have occurred even absent the impermissible discrimination, as a matter of law plaintiff was not entitled to damages or back pay. Because this litigation only concerned the past actions of the defendant towards this plaintiff, and the plaintiff no longer works for the defendant, injunctive relief was not appropriate. Plaintiff's success is nothing more than the satisfaction of having her belief that she was the victim of illegal employment discrimination validated by the jury's verdict. Under Hensley, if the court were to consider only the "level of success" achieved by plaintiff, the fee award would be de minimis.

The court is concerned, however, that a strict application of the Hensley analysis would frustrate congressional intent in enacting 42 U.S.C. § 2000e-5(g)(2)(B). A Title VII plaintiff is the "chosen instrument of Congress to vindicate a policy that Congress considered of the highest priority." Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 418, 98 S.Ct. 694, 699, 54 L.Ed.2d 648 (1978). Congress intended that plaintiffs who have established a mixed motive recover attorney's fees. If Congress intended merely a nominal recovery, it could have expressly provided for such.

The partial success determination is part of this court's inquiry into the reasonableness of the fee in a given case. Gates v. Deukmejian, 987 F.2d 1392 (9th Cir.1992). The Ninth Circuit has adopted a two-part analysis for meeting the Hensley requirements, but it is of little assistance in this situation. Schwarz v. Secretary of Health and Human Services, 73 F.3d 895, 901 (9th Cir.1995)⁶.

In Hannon v. Chater, the district court was faced with a similar situation. 900 F.Supp. 1276 (N.D.Cal.1995). In that case, the plaintiff had sought damages and an injunction requiring the defendant agency to hire him as an Administrative Law Judge. The jury returned a mixed motives verdict, precluding the relief sought. The court characterized the plaintiff's achievement as "half a victory", and awarded half the lodestar amount (number of hours reasonably expended multiplied by a reasonable rate)⁷.

Defendant contests plaintiffs right to a one hundred percent fee award, but fails to provide the court with a principled method by which to reduce the amount requested by plaintiff. In the absence of authority to the contrary, the court adopts the approach taken by the Hannon court, and finds that the fifty percent approach strikes an appropriate balance between the policy objectives embodied in 42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B) and the degree of success achieved by plaintiff in this litigation.

In calculating a reasonable attorney's fee for the prevailing party, the court should employ a "hybrid approach" in which it first calculates a lodestar amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate, and then increases or reduces the presumptively reasonable lodestar amount, if appropriate, with reference to the Kerr factors (from Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975)), which have not been subsumed in the lodestar calculation. Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir.1988), cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990).

The lodestar amount in this case is $30,258.00 (168.1 hours claimed multiplied by an hourly rate of $180⁸). Many of the Kerr factors are deemed subsumed in the lodestar calculation. For example, the customary fee, the novelty and complexity of the issues⁹, the special skill, experience, and reputation of counsel, the quality of representation, and the results obtained, have all been accounted for in the hourly rate and the hours reasonably expended. There is no evidence that counsel was precluded from other employment due to acceptance of this case. Nor were there any unusual time limitations. Under City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), the contingent nature of the fee agreement with the client no longer provides a basis for enhancing a fee award.

Defendant questions an April 9, 1993 bill for 1.5 hours to research jurisdictional requirements; a June 25, 1993 bill for 3.0 hours of...